Asked by the Customer on 05-08-2019 11:14:00
Question posted in the General Law category relating to Gauteng

Hi

Hope you are well

I have a big matter that requires resolution. And no idea how to deal the matter

I used to live a complex in Randburg Johannesburg for many years and had befriended the landlord who owned the complex. He had mentioned to me that he was selling one of his vehicles and I mentioned to him that I would like to purchase the vehicle. So he got his lawyer to draw up a contract this was round abt 2014, and I agreed on the terms, which was pay monthly an amount of 2k ( vakue of th vehicle R150 000 which I increased to 4k to pay it faster and the car was then given to me. I paid off the vehicle in 2yrs. When I asked for the certificate of ownership papers it was always a story or he was busy..I didn't think anything of it at the time as I lived in the complex and I assumed at some point he would hand over the papers. Then in 2017 I wanted a more later model vehicle and had asked the same landlord to assist in financing the vehicle for me and he had agreed. He purchased the new vehicle and I had signed a new contract with his lawyer that I pay the Instalments and insurance etc. Abt 8months into having the vehicle I realised that I cannot afford the instalments as I had a car accident with the gate at the complex and I had to pay for the aesthetic damages which amounted to R20 000 and its money I didn't have at the time, I had to borrow that money and he took the car away after defaulting on one months car payment. Then Two months later I asked for the vehicle back, I paid up whatever I owed and then had another unfortunate accident and had to pay huge access amount , the insurance covered the repair, so this set me back further and I told him by then i. Cannot afford the vehicle he collected the vehicle then proceeded to instruct his lawyer to draw an acknowledgement of debt sayinf I owe R170000 , so I have been paying R10 000 a month which he would not budge on any less and I am.battling to survive. My husband isn't working at the moment, I have now two kids, one in preschool and i a new born to worry abt. I've defaulted this month on payment because I have so much of responsibilities. I want the certificate of ownership for the old car but he is refusing to give me the papers saying that his collateral. Now he has threatened to take me to court if I default on payment again so I need to know what I can do.

Regards 

S

Posted by Att. Patrick on 05-08-2019 14:02:55

Hi there and thank you for your question,

I am a practicing attorney based in South Africa and I will assist you with your question. Please feel free to ask as many follow up questions in order to clarify your question. If you have a new question, you must please open a new thread.

Wow, that's quite a situation to find yourself in.  

First, the landlord has an obligation to give you the registration papers for the first car. You've paid him in full for the car, and you are entitled to receive the registration papers. If you wanted to, you could take him to court and ask the court to order him to hand the registration papers over to you. But, it would take your case a while before it came before a Magistrate, and you'd probably need to pay a lawyer legal fees in order to take your case to court - so maybe not the best way forwards. But this is your option. 

Secondly, as far as I understand it, you only missed 1 payment for the new car, so why is the landlord demanding that you pay him R170,000?  Is that the balance of the financing on the car which is due to the bank? If so, then will he give you the car back once you've paid him the R170,000? Or what does the landlord say?

Legally, the landlord is the owner of the new car. I think that there is then a back-to-back agreement with the landlord that you will purchase the vehicle from him, at the same instalment as the bank charges him, and that once you've paid off the entire amount he will then transfer the car into your name. The issue is that you've now breached the agreement, and he has taken the car away from you. Either, he took the car away from you in terms of a further oral agreement with you. OR, he simply took the car away from you without your consent. If he took it away from you without your consent, then you can approach the Magistrates Court for a spoliation order and you could get the car back quickly, and cheaply. But I don't think that happened. I think that he took the car away from you in terms of a further oral agreement with you that you would pay off the balance of purchase price and then you would get the car back.

If that's what happened, then a court will only come to your assistance after you've paid off the balance of purchase price. You need to pay off what you can, and when you can. Otherwise, you must enter into a new agreement with him in terms whereof you get to use the car and you'll pay something each month.  He is after all still the registered owner of the new vehicle, so he has security in the new vehicle. 

He is not legally entitled to withhold the registration papers for the old car, pending you paying him the balance of purchase price for the new car. But he is, so you'd need to apply to court to get the old car's registration papers, like I suggested above. But then, he might cancel your agreement with the new car, and he could then tell you to "get lost" and simply sell the car off to recover his money, and then maybe sue you for any loss that he has suffered.

All in all, not a very strong position to be in. 

I think that your best bet is to negotiate a new deal with him.

If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.

Att. Patrick

Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.

Hi Patrick

Thanks so much for your response,he has taken the car away because I Gave it back to him because I could no longer afford it, he has asked me to pay R170 000 for the months I missed during the time I had the vehicle and for 6months rent which was R5000 a month, let's just say that new car put me in a fix, my concern ive signed the acknowledgement of debt with him, but the instalments are just too high I cannot afford it. .if I could I would not have given the vehicle back in the first place. He says if I don't pay 10k he will take me to court and they will request my bank statements and force me to pay that amount etc.

Posted by Att. Patrick on 06-08-2019 12:44:22

If you signed the acknowledgement of debt with him, then legally he is entitled to demand that you comply with the terms of the acknowledgement of debt and make payments as you agreed. 

If you simply can't afford to make the monthly payments, then you MUST tell him that and he can either - 

1) Renegotiate a slightly smaller monthly amount; or

2) Sue you for the money, spend money on lawyers, and maybe attach some of your stuff if he is lucky, in 2 years time. 

I think that there is a good case to be made out that he must renegotiate a slightly smaller monthly amount with you. You can also tell him that if he goes the summons route, you will bring a counter application for the registration papers of the old car.  At present, he is holding that as security, so there is very little risk that he has. 

You can also tell him that your bank statements will show that you're not earning a lot, and a Magistrate might only order you to pay R1,000 per month! And then what? Would he prefer to go the renegotiate route and get a little less than R10,000 per month, or the legal route and take his chances and maybe only get R1,000 per month.