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WCLawyer
WCLawyer, Attorney
Category: South Africa Law
Satisfied Customers: 14867
Experience:  L.LB (UOVS)
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My husband and I have been in the process of buying property.

Resolved Question:

My husband and I have been in the process of buying property. Just as the lawyers were lodging at the deeds offive they dicvovered that an interdict had been placed by the seller's ex wife! it is now more than 5 months later and we are getting worried and being sent from pillar to post. he seeler no longer wants to sell by the looks of things because he doesnt want the wife benefitting from the sale. What legal recourse do we have?
Submitted: 1 year ago.
Category: South Africa Law
Expert:  WCLawyer replied 1 year ago.
Good day.

This is an info request to assist you better. Please continue on this thread.

What is the nature of the interdict?
Customer: replied 1 year ago.


Not entirely sure but it has to do with the ex wife and him not paying some sort of maintenance. They are divorced.

Expert:  WCLawyer replied 1 year ago.
Is she named as a co-owner of the property?
Customer: replied 1 year ago.


Hi,


 


all the documents we signed indicated that the husband was the owner. There was no mention of the wife until now.

Expert:  WCLawyer replied 1 year ago.
What do you want as a result? Would you want to enforce the agreement or cancel it?
Customer: replied 1 year ago.

Enforce it

Expert:  WCLawyer replied 1 year ago.
Okay. Finally, just to confirm, the transfer is being held up by him (the seller) refusing to sign certain documents?
Customer: replied 1 year ago.


No. My understanding from the transfer lawyers is that they are trying to get the interdict lifted. But because the husband does not want to pay the ex-wife whatever money he owes her he is now asking the transfer lawyers if he can get more for the house.


 


This is what is upsetting us because we are not sure now if he is the one holding up the process or that he is the one being stubborn therefore refusing to agree with the ex-wife so taht the interdict can be lifted.


 


We moved into the house in March after being told that the bond is going to be registered in April It is now almost September. We are paying occupational rent which could be going towards our bond and what is also concerning for us is that our approval from the bank is valid for 12 months and that will expire in Decemeber. The transfering attorneys keep promising us that the sale will go through but this has been going on since April.


 


We are worried what if Decemeber comes then what? or maybe he can tell us that he retracts his offer...

Expert:  WCLawyer replied 1 year ago.
I am sorry, but I cannot advise you properly unless I don't know what the nature of the interdict is. Would you be able to find out? If you can just tell met whether this is an attachment pursuant to a civil judgment or not, that would help.
Customer: replied 1 year ago.


Hi. I just found out that it is an attchment pursuant a civil judgement.

Expert:  WCLawyer replied 1 year ago.
Will the purchase price you pay satisfy the bond amount still owed by the seller as well as the amount on the interdict, or will it fall short?
Customer: replied 1 year ago.

Hi,


 


There will be no short fall.

Expert:  WCLawyer replied 1 year ago.
Just to summarize then:

You are currently paying occupational rent for a property that you have bought but cannot get transfer of because the seller refuse to let his wife have the full amount of her civil judgment. Apparently, his attorneys is applying for the rescission of this judgment.

In the meantime, you are suffering damages in that the occupational rent is going towards his bond rather than towards yours.

The purchase price is enough to settle the judgment debt as well as the outstanding bond (if applicable).

Correct?
Customer: replied 1 year ago.
That is correct except that his attorney's are not applying for recission. We are being kept in the loop by the transfering attorney. The transfering attorney has now requested a meeting with us next week Wednesday and the attorney informs us that they are now even battling to get hold of the seller.
Expert:  WCLawyer replied 1 year ago.
What action are they then taking to get the interdict lifted?
Customer: replied 1 year ago.

It seems as though the seller does not want it lifted. He does not want his ex wife to benefit in any way. Hence why he is now ducking and diving.

Expert:  WCLawyer replied 1 year ago.
Finally: Do you know whether the wife would have a problem with you continuing with the sale?
Customer: replied 1 year ago.
No I do not know. The wife is overseas and is not the co-owner of the house.
Expert:  WCLawyer replied 1 year ago.
So you have no idea whether the wife is going to proceed to sell the house on auction?
Customer: replied 1 year ago.

No I dont. Can she do that?

Customer: replied 1 year ago.

No I dont. Wasnt even aware she could do that.

Expert:  WCLawyer replied 1 year ago.
That is what a civil judgment is for. It is to attach goods to be sold so as to satisfy the debt for which the goods were attached. So, he can say that he does not want the wife to benefit from the sale, but she is going to benefit, one way or the other. The reason she is probably not going ahead with the sale in execution would be because there is probably a bond on the house and the expected proceeds on a sale of execution (which is normally lower than value) will only cover the bond. So, she is holding out and I think probably hoping to benefit from the proceeds of a sale.

An argument can be made that your contract of sale is invalid due to the attachment, since legislation prohibits you from alienating property that is attached. Although it is his house, he is selling something that the law says he cannot sell.

I have tried to find case law dealing with this kind of thing, but it seems that most of these types of problems are sorted out between the parties before they go to court, because there is almost nothing that I can find.

If you approach the wife and ask her to approach the court with you in an application to enforce the sale (where the sheriff will give transfer, rather than the owner), that is about the only solution I can think of at this stage in order to force the transfer.

I know that this is probably not the answer that you have hoped for, however, I hope that you can still get some value out of it. I try my best to provide you with a legally sound and accurate answer and sometimes, it is not always good news. If you have follow up questions before you rate, feel free to ask them at no extra cost. If you are satisfied with the service, kindly rate it positively. I do not get anything unless you rate the service
Customer: replied 1 year ago.

Thank you.


 


One last question. Wat if the wife is overseas, which I am tild she is?

Expert:  WCLawyer replied 1 year ago.
She must have South African attorneys who is in contact with her. Someone applied for the attachment of that property. Discuss it with the conveyancers on Wednesday and see whether they can possibly use that as a possible solution.
WCLawyer, Attorney
Category: South Africa Law
Satisfied Customers: 14867
Experience: L.LB (UOVS)
WCLawyer and other South Africa Law Specialists are ready to help you

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