I have been paying rent to the late owner's sister. Can she sell the house if the owner's child has been missing for 20 years?

The long answer

Even though the child beneficiary of the house has been missing for over 20 years, it would be wise to establish if a serious attempt was made to find the beneficiary at the time that the owner died. If no attempt was made, and this child beneficiary reappeared, they could claim the house. If there was an attempt to find the beneficiary which was unsuccessful and the deceased owner’s parents are also deceased, then the sister would be the next in line to inherit the house in terms of the law of Intestate Succession which applies when a person dies without leaving a will. 

The sister would need to transfer the title deeds into her name to be able to sell it, though, as title deeds are the only legal proof of ownership. So perhaps you should start off by finding out if title deeds were ever issued to the original owner.

To find out, you would need to go in person to the information desk at your nearest Deeds Office and they would help you fill out the prescribed form. They will only give out this information if you have the full names and / or ID number of the owner of the property, or at least her date of birth. You would also need the correct erf number, not the street address. You would have to pay R14 for them to do this data search which should take about 30 to 60 minutes.

If the title deed was lost or destroyed, a copy in the form of a computer printout can be obtained from the Deeds Office.

If there is a title deed in the name of the previous owner, the sister would have to have it transferred into her name. This involves a lawyer, called a conveyancing attorney who would see to it that the title deed was signed into her name by the Registrar of Deeds and file a copy in the Deeds Office. The conveyancing attorney would charge a fee, which can be as much as R7,680, for all the paperwork that is must be done to transfer the title deeds. 

If no title deeds have ever been issued, you and the sister could approach the municipality of your area and ask why no title deeds were issued and if they can now assist you in this matter, as she wants to sell the house to you, and needs to have title deeds that can be transferred into your name.

If they do not assist you, you could contact the Housing Enquiries of the Department of Human Settlements at the toll-free customer service hotline:

0800 146 873 / 012 421 1915

If there is no help there, the sister can bring an application to the high court to ask for a declaratory order that the house be transferred into her name. She could contact Legal Aid to assist her with the application. Legal Aid is a means-tested organisation which means that they must assist people who cannot afford a lawyer.

This is the contact information for Legal Aid:

Legal Aid Advice Line (Toll-free): 0800 110 110 (Monday to Friday 7am – 7pm)

Please-Call-Me number: 079 835 7179

email:communications2@legal-aid.co.za

If she is able to get the title deeds into her name and agrees to sell the house to you, she can appoint the conveyancing attorney to transfer the deeds into your name, but you as the buyer will be responsible for paying the conveyancing attorney. The Registrar of Deeds may only transfer the property if the municipality issues a certificate saying that all municipal service fees and rates have been fully paid for two years before she applied for a clearance certificate. 

All of this is longwinded and expensive, but it is the only way that you can be sure that you are the legal owner of the house, and that no one else can turn up and claim it. An informal sale where you sign an affidavit at the police station is no legal guarantee of being able to keep the house and be able to sell it yourself, or leave it to your family members.

Wishing you the best,
Athalie