Good day, my partner and I are not marri...

Asked by Diane on 30-11-2023 05:04:06
Question posted in the Property Law category relating to Mpumalanga

Good day, my partner and I are not married yet or engaged however he have made alterations to one of the houses on the smallholding and overall improvements that definitely increased the property value. He has been renting the smallholding as a rent to buy option for a few years now. Paid R12 000 pm and an estimated R850 000 where the original amount was R1 200 000. So the balance was left at R350 000. The first R35 000 should have been paid by 1st of October (which I think is ten percent).. however my partner died a week before that date on the 23rd of September. In one of our earlier whatsapp chats he admitted to buying the plot. According to my almost sister in law the idea was to finish main house and ask me to marry him. They did not have a contract for the renting period as I understand. They agreed on a deed of sale my sister in law was there when they discussed same with owner and his wife.. other thing is there is legal proceedings against his other sister who came and took everything in his house plus documents and personal belongings. We are not sure if there was a deed of sale document which I find strange..she does not co operate in giving back things. Now according to the owner he said that they would have signed the Deed of Sale after the payment of R35 000. We have heard that he has in the meantime sold the plot we believe he made a valuation for the latest impr0vements not only did he get R850 000 already from my partner he also pocketed the new amount. My partner's older sister and her grandchild also lived there. A mere two weeks after his death they  moved out.. with no paperwork whatsoever. Also the owner did not give his details so that their current attorney representing his Will, can contact him and be a honest man at least. If there is no Deed of sale I can understand it, but can we find any recourse or solution for the monies already paid? Even if that would only mean the R850 000 back at least. I feel that property can be valuated easily from R1.6 to R1.8 milion now. My partner left everything to the child in Will dated 22 January 2022. It should have changed to me when we got married earlier next year  This child is 13 now and she and her grandma (my sister in law) lives with her other daughter now. Their current Attorney told them if they cannot produce a Deed of sale we have no case. With the current projections we believed he got paid about R320 000 by end of October he told my sister in law he would be okay until January. He also have a R80 000 overdraft if not more I believe. The other sister took all his cards admitted she only withdrew R9 000 to help cover his funeral expenses and selling his  belongings. (That is 6 trailers from a 3 bedroom house..)  the fact is if the Owner had a bit of decency he would try to settle or arrange something. I do not think this Deed of sale is with a Bank but he would have paid it off .. maybe I am wrong. The owner is a Vet that will retire now as the plot was his last property to sell before they emigrate or move overseas. What can we do in such a short time t0 prove some sort of solution? I do not need to claim from my partner's estate but the girl have nothing for her future ..any help? This property is outside Vanderbijlpark I reside in Mpumalanga.

Message from the Lawyer

Posted by Att. Patrick on 07-12-2023 11:41:50

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.

Please keep in mind that our discussions is for general information purposes only. Our engagement on this website does not create an attorney-client relationship. 

The fact that there isn't a signed Sale Agreement is a major issue, primarily because not only is there no actual agreement in place (yes, there might have been discussions, etc, but there is no agreement signed) but also because the General Laws Amendment Act requires any agreement regarding the sale of property to be IN WRITING and SIGNED by the parties. So, without a signed written sale agreement, you have a major issue. 

Given that there is no signed written agreement, I do not think that you have any chance of demanding that the owner continue with the original intention and transfer the property to you. Especially since it was your late boyfriend who actually entered into the rent-to-buy agreement, and he has passed on. The law does not allow you to essentially step into your late boyfriend's shoes in order to continue with the sale. 

If there is no Deed of sale I can understand it, but can we find any recourse or solution for the monies already paid? --> Your late boyfriend's estate (represented by the Executor of the Will) has a legitimate claim against the owner of the property for the amount of money that your late boyfriend spent on the property to make improvements. i.e. the R850k. If spending that money actually improved the value of the property by more than this (e.g. by R1.5m) then the estate would actually have a claim for that full amount. The law says that the claim is for the increased value of the property. 

Their current Attorney told them if they cannot produce a Deed of sale we have no case. --> Yes, my advice as well. 

It must be the executor of the estate who puts forward this claim. Obviously you will help the executor get the evidence of the payments, etc, but the executor must fight with the current owner about getting the money back.

Answer Accepted

This answer was accepted on 08-12-2023 00:41:51

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