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WCLawyer
WCLawyer, Attorney
Category: South Africa Law
Satisfied Customers: 14714
Experience:  L.LB (UOVS)
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My house has been sold via a Liquidator under deceased estate

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My house has been sold via a Liquidator under deceased estate as my late ex-husband and i didn't seperate the joint estate when we divorced. The house was up for auction in February 2011 which i was not given notice of to be able to bid, so the house was sold to the highest bidder. In 2013 April I was still occupying the house and paying my monthly bond installments and I found out the buyers via the auction only paid 20% deposit and 2.5 years later they had not settled the outstanding amount and this information was not made available to me. I had to do my own digging and when I got hold of the bidder and she confirmed that they had only paid the 20% deposit and nothing else towards the amount it was sold. Then in August I received a letter from the Lawyers representing the new owners that the house has been transfered and registered to these new people in June 2013 already. To my dismay I was informed via a letter that I needed to move out of the house by the 15th of August 2013 and this notice was given 1 August 2013. I refused to move out because the I didnt even get a red cent from the money that this house was sold for and I have alot of other questions with the way that this sale was conducted. Then in September they sent me an Eviction notice stating that if I do not move out by the 31st October they were going to Apply for an Eviction Order. If i wanted to avoid all that then I had to buy the house for R650k. I have been in consultation with my lawyer to go to High Court and Set aside the sale of this property because the liquidators were not transparent with the process and they waited for someone 2.5yrs to transfer the property and they never gave any notice that they have extended the period for them and more than anything with these people wanting me out of the house yet I dont even have a cent from the proceeds of the house. Can I contest the Court order, shoudl they get it and what are my chances of getting a favourable outcome out of this?
Submitted: 8 months ago.
Category: South Africa Law
Expert:  WCLawyer replied 8 months ago.
Good day and thank you for your question. My name is XXXXX XXXXX X will try and assist you today.

In order to provide you with the most accurate answer, I may have to ask you a lot of questions. This may seem tedious and irrelevant, but trust me, there is a reason for every question. So please be patient throughout the process and if it takes a little long for me to come back to you, it is probably because I am researching your answer. I hope that is okay.

How were you married? In or out of community of property?

What did the divorce order say, what needs to happen with the property?
Customer: replied 8 months ago.

We were married in Community of Property in 1995 and in 2001 my divorce was finalised and part of the order was as per below;


That the joint estate shall the divided.


Custody of our 3 children was awarded to me, and he shall have supervised access to the children and he was ordered to pay R500/m maintenance for each child via the Magistrate and the children shall remain under his Medical Aid.

Expert:  WCLawyer replied 8 months ago.
On the title deeds, are you listed as a part owner?
Customer: replied 8 months ago.


yes both of us jointly with each half share.


 


In 2004 my ex-husband wrote an affidavit to Std Bank cos thats where our bond was held. stating that he is divorced to me and he doesnt have anything to do with the house, all queries must be directed to me only.

Expert:  WCLawyer replied 8 months ago.
Are you also saying that the full purchase price has not been paid?
Customer: replied 8 months ago.

The bank has cancelled the bond, only 60k was remaining on the bond, and as to where those funds have been deposited I am in the dark because the liquidators have ignored every effort made when requested the Liquidation and Distribution Account.

Expert:  WCLawyer replied 8 months ago.
But you said you were paying the bond up and until now?
Customer: replied 8 months ago.

My last payment was made end June 2013, when i came through to the bank to make a deposit i was informed by the consultant that the account was closed and home loan cancelled, it was cancelled upon registration and transfer of the property on the 26th June 2013 to the new owners.

Expert:  WCLawyer replied 8 months ago.
I do believe that you would have a chance of success in reversing this sale. I am not going to comment on the conduct of the liquidator at this stage and whether he was transparent or not. I am sure that there are issues there as well that your attorney will address, but my concern is with regards XXXXX XXXXX legality of this transaction.

You were married in community of property, which means that you had one common estate and if you were still married when he died, then you would probably have been dead on the merits in this case.

But the situation now is that you have been divorced and the divorce court ordered a division of the estate. This means that the property was now not owned in one common estate, but in two separate estates, being yours and that of your husband. You were, from that date, joint owners in your own right, rather than joint owners in a common estate.

There is a principle in law that the assets of one person cannot be sold to make good the debt of another. There are exceptions to this rule, but none apply here.

As such, the liquidator only had the authority to sell the 50% share of your husband and not your 50% share as well. The contract would therefore be, in my opinion, capable of being challenged on the fact that you never contracted with the buyers to sell your 50% share and that, at the very least, the transfer of your 50% share would therefore be invalid.

I sincerely XXXXX XXXXX I am making sense here, but 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.
Customer: replied 8 months ago.

With regards XXXXX XXXXX Eviction order that they want to apply for, will this be frozen pending the investigation of the sale after obtaining a Court order to set aside the sale?


And if we are successful in this case is the transfer of the property reversable? Meaning that the house can be re-registered to my name?

Expert:  WCLawyer replied 8 months ago.
You will have to defend the eviction application when it comes and ask the court to suspend the application, pending the decision by the High Court.

If you are successful, the court can make any number of order. He can order that 50% be transfered back to you, he can order that the transfer be canceled and that the situation return to what it was prior to transfer, he can order that the transfer stand, but that the liquidator is to pay you 50% of the proceeds of the sale or any other order that the court deems fair and just.

So, whether a cancellation of the transfer and a return to the status quo is certainly a strong possibility, it is probably not a certainty.
WCLawyer, Attorney
Category: South Africa Law
Satisfied Customers: 14714
Experience: L.LB (UOVS)
WCLawyer and other South Africa Law Specialists are ready to help you
Customer: replied 8 months ago.

The court order in the appointment of the Liquidator states "the liquidators have been appounted to realize the whole of the community estate including assets, movable and immovable, and for that purpose sell them or any part of them, by public auction or by private agreement as it may seem most beneficial with leave of both parties to bid..."


 


You mentioned that the estates were not owned by one common estate but by 2 joint estates since they were divorced, what confuses me is that the court ordered that the community estate be auctioned or sold by private agreement. Is community estate the same as joint estate? I'm really confused since reading the court order appointing the liquidators stating community estate.

Expert:  WCLawyer replied 8 months ago.
It is the same. I unfortunately have no idea why the court would order this, unless the judge that made the order was never informed of the fact that you were divorced.

I think what could be the problem here is that this is the liquidator that was appointed by the executor to deal with the division of the joint estate as per the divorce order, possibly and not as an insolvent deceased estate. If this is the case, it would probably be because the common estate prior to divorce had a lot of debt. If there was no debt, or the debt that was there was serviced by you, the conduct of the liquidator would again come into play. The above line of argument would then probably not succeed.

It does, however, seem as if there were some procedural irregularities in the liquidation process, such as not informing you of the auction, or even the outcome thereof.
Customer: replied 8 months ago.

The executor of estate is my ex-husband's wife. My lawyer gave me section 45(bis) to sign to have joint estate with the current wife, when i searched on MyDeeds website, her name appeared as the owner prior to the new people being registered. So i was confused because the liquidators said the Section 45(bis) needed to be signed so that the current wife can have her husband's share under her name and then the next minute the whole house was sold off to those people it had been auctioned to 2.5yrs ago but they hadn't paid the remaining balance within reasonable time but only in June upon registration of the house.

Expert:  WCLawyer replied 8 months ago.
You asked about the merits of your case and every time you come back, I feel more and more confident that this is so fraught with irregularities, that you would probably succeed with your application.
WCLawyer, Attorney
Category: South Africa Law
Satisfied Customers: 14714
Experience: L.LB (UOVS)
WCLawyer and other South Africa Law Specialists are ready to help you

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