Asked by the Customer on 17-11-2021 19:18:08
Question posted in the Family Law category relating to Western Cape

Good evening

My father who passed away left his property in my name. I am planning to move in to the home at the end of this year with my girlfriend. Currently my stepmother is living there and her lawyers stated that they will file for spoliation if I am to attempt to move in. What does this mean and can she in this manner prevent me from moving into the property? 

Posted by Att. Patrick on 17-11-2021 22:30:27

Hi there, 

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.

If your stepmother is currently living in the property, then you can't just move in. If you do so, you will basically be infringing on her rights to live there. So, first you need to get her out. This might involve negotiating with her to leave, or it might involve a court application (essentially an eviction application) to get her out of the property. Before you launch eviction proceedings, you need to send her a letter saying "I am the new owner; you can't live here anymore; I am withdrawing any consent that you had to live here; you need to move within 2 months, otherwise I will evict you."

But before that happens, you need to be the owner of the property. This means that the executor of your late father's estate needs to administer the estate and actually transfer the property which you inherited into your name at the deeds office. 

Thank you for your answer.



Does this also apply if I have been living there my entire life? I have only not been living there this year due to me having to work in another city, but my contract ends this year and I plan on moving back


I also have constructive possession of the property as I have keys to the property.

Posted by Att. Patrick on 18-11-2021 11:00:31

Okay, so that changes things somewhat. 

When you moved out this year due to you working in another city, was it a fixed term contract, and was it always understood and accepted that you would be moving back into the house on xxx date?

In other words, did you "move out of the house" in order to go live somewhere else; OR did you "move out of the house for a period of time to work somewhere else but you were going to then move back into the house"?

Factors could include whether your bedroom has remained your bedroom, and whether some of your clothes and stuff is still in your bedroom. That is a clear indication that you were always going to move back in.

The reason I moved to a another city is because I am completing my community service after my studies. This is only a one year contract which ends at the end of this year.
It has always been clear that I will be moving back at the end of this year. I have made this clear to her. And yes there is still various amounts of my personal belongings in my room at the house, including clothes, electrical appliances and study material.

Posted by Att. Patrick on 18-11-2021 12:56:43

Then in my opinion, and based on what you've said, you have never relinquished possession of the property and you are legally entitled to return to the property to continue living there. She can't take that right away from you, partly, because she does not actually own the property. Legally, you are both "allowed to live there", even though you are soon to become the registered owner. Practically, at the moment, she is the only one actually living there, but you are returning to the property soon - as it was always understood. I think that you are on the right side of the law here. 

Thank you very much.
I appreciate the information you have provided me with.

Posted by Att. Patrick on 18-11-2021 16:29:45

It is a pleasure. Just remember that your stepmother could still try go to court to enforce "her version" of the events, to try get her way. It does not mean that she is right. It might just mean that you have to fight it a little. 

You could also take a proactive stance and apply to court for a spoliation order on the basis that you used to have peaceful and undisturbed possession of the house and your stepmother has not refused to allow you back into the house! 

If you did that, you would basically preempt any court application she wanted to bring! It would definitely take the wind out of her sails!