 Welcome to your Property Rights Podcast proudly brought to you by Private Property. If you're looking for expert legal answers to all your property-related questions, then stay tuned. A warm welcome. It is another episode of your Property Rights Podcast. And good day. Good day from Paul Rotherham, proudly brought to you by Private Property. Solna Stain, by the way, is the MD of SSLR, Incorporated Attorneys with a national footprint. Property is our expert when it comes to property law, specifically focusing on rentals and evictions, which leads us very nicely into today's question. High Private Property. I bought a house for 35,000 rand from my neighbour. We went to the police station together and signed an affidavit. Then, when I tried to move in, there were people already staying in the house. They wouldn't leave. So I spoke to a lawyer who told me the house is not mine and doesn't belong to me. I've paid a lot of money for this house. Please can you help? Sure. This is a desperate, desperate story and a very sad message to read here at Private Property. But thank you for sending this through. Let's see if we can, in fact, help. Paul, this is a devastatingly sad question. And the reason why it's so sad for me is I see this way more often than I would like to. As a property lawyer, I think I do understand a bit better and I have a bit more empathy with people asking these kind of questions. And I really hope that with this podcast, we can get this answer out there so people understand property ownership and the transfer of ownership of immovable property just a little bit better. That's the way this is coming from and why there is such big confusion in all of this. If we look at the very complex history of South Africa, for a very big portion of our history, a lot of people, by far the majority of the country, were just not allowed to own immovable property. We had those long-term leases, but that wasn't property ownership in the true sense of the word. And obviously, if you haven't owned property, you haven't lived in a house that your parents own, you didn't see property transfer. As you were growing up, I have a lot of empathy with this question and I'm so grateful that we get the opportunity to answer this question. So why property ownership and transfer of immovable property is such a complex thing is because it's super counter-intuitive. We are used to buying things. You walk into a shop, you take a coke off the shelf, you pay for it and now it's yours. You can drink it, you can pour it out next to the road, whatever. It is yours. This is not the case with immovable property. With immovable property, we follow a very particular system that we adopted into the South African law from the Dutch law system. Whatever our legal system is based on the Roman Dutch law system and this is a Dutch law element of that. And I want to add at this point that our immovable property transfer system is in fact one of the best in the world because we record it very specifically. We record in our deed's office the diagrams that is done by your town planner or your land surveyor and then for every earth that the town planner sits out and the land surveyor then draws onto the diagram, we have something issued called a title deed. Now a title deed is really just a piece of paper but it's a pretty important piece of paper. That piece of paper says this earth with this earth number. So it's not an address per se but it's obviously your earth number links to your address and it's just a way we record it in the deed's office. A title deed is, one title deed is issued per earth and that title deed will always remain the same title deed for that earth for ever and ever which is why do this things in our deed's offices. We still have very old title deed, some of them I recently heard still recorded on Pigskin, a really massively old pieces of information and then you just change the name of the owner but not by crossing it out with a ruler and rewriting the new name, it has to go through a process and this process is called the transfer process. The only person that's allowed to do this is a conveyancer. The conveyancer is an attorney that's specialised in a slightly different angle. You write a special different exam which is called the conveyancing exam and then you have to approach the High Court like you have to get admitted as an attorney or an advocate or a notary for that matter. Exactly the same way approach a court asks them if you may be enrolled as a conveyancer and once the court says it's called you may be a conveyancer. You are the only person who are allowed then to transfer property on behalf of another person. So unfortunately to go to the police office and do an affidavit that might in a way sort of replace the world that an offer to purchase a sale agreement those are all the same things that might replace that part of the transaction but until you instruct a conveyancer which you are going to find now at a law firm typically until you instruct a conveyancer to transfer the property from the owner to the purchaser so transfer from the seller to the purchaser so the register of deeds will consider this application let's call it that and deeds register will then say okay I am satisfied that all the requirements was met I am satisfied that this seller paid all these rates and taxes I am happy that we can now transfer the property to the purchaser and then there is a process that happens and it is recorded as such in the deeds office that data is then widely available and it's public available information it's one of those pieces of information personal information that is in fact not overly protected by Poppy the protection of personal information act so we can all access the deeds office data without bridging any other legislation so when I do an eviction as now let's put me back in my eviction shoes if I do an eviction I have to do a deed search through this there's quite a lot of systems that allow you to do deed searches and I have to confirm in the deeds office that the person owning the property the person wanting to do the eviction is in fact the owner of the property and in this particular case unfortunately our listener isn't because an affidavit at the police station would not fulfill that requirement to transfer the property from the previous owner the seller to the purchaser and for that reason this listener is in fact not the owner of the property and for that reason won't be able to evict the people in the property legally because he's not the owner and that is one of the most important things to prove when you do an eviction so unfortunately this property wasn't transferred to the purchaser at all it's almost a scam isn't it Silna and I'm not suggesting that in this case it was an intentional scam you might very well have people who are just simply ignorant they're not fully aware of the process just a question here and it does concern me somewhat surely at a point if you are signing an affidavit at a police station one would think that the police themselves would have an understanding of the legal process and say well hang on a minute here unfortunately signing an affidavit is not sufficient to transfer a property what can be done about that is there anything or not unfortunately remember the police in that role wasn't acting in the as the police per se they were acting as commissioners of oath so remember a commission of oath is any attorney any accountant and then police officers and a few other people are commissioners of oath as well I am obviously then also a commission of oath I know very often the heads of schools are commissioner of oaths they have a stamp and they can assist you with verifying ID documents and so forth exactly just something that's good to know if ever you do need a commissioner of oath stamp and you live near a school it's a handy thing to know but as a commissioner you're not authenticating the content of the document you're authenticating that the person signing this affidavit is in fact that person so you ask for the ID so you can confirm you tell the person please just drop your mask a little so I can confirm that you are in fact this person and a commissioner of oaths only confirm that the person who signed is in fact that person so the content of the affidavit is completely irrelevant in the hands of the police so the police won't won't consider that they probably will not even read it because they don't have to even when I commission a document I never read the content because it's irrelevant I just need to confirm it's this person and I think that's exactly the problem because people believe they've done this at the police actually you haven't you could have gone to the principal of the school as you rightly said Paul and that wouldn't feel as legally binding to go to a school as it would to the police station but I'm very glad you used that and because that makes the point if you go to any other commissioner of oaths to do this it would feel suddenly it feels more okay this is potentially not the way we transfer property unfortunately then Silner here on the private property rights podcast am I correct in assuming that at the very least what could happen here is the person who has spent the 35 thousand rand on a house at the very least they could approach the person they paid that money to and potentially open a case of fraud of some sort and but in terms of property law itself this isn't really a property law question per se this now becomes almost a criminal activity yes if it was intentionally but what I see with these kind of matters usually it's not it's not there is no intention of defrauding the other body if there is definitely go to the police open a case of fraud and then it will be prosecuted by the state however if it was an accidental oversight due to to bona fide ignorance my answer would be go to a law clinic or a legal aid or or the lawyer that advised you previously but definitely a conveyance take that affidavit because we can definitely use the content of the affidavit to bring it into a sale agreement we do a formal sales transaction we change that affidavit to a sales agreement an offer to purchase where both parties sign because in terms of the alienation of land act an offer to purchase immovable property must be in writing and signed by both parties if that's not the case we're not even ticking the first box when it comes to property sales so that has to be done in a specific form must be done in writing signed by both parties and then we can get to the transfer process so I'm really hoping and and I do believe in this case we can still help this listener out by giving this advice to go to a conveyance you can still transfer after the fact money was already paid so luckily that part of the transaction is already done now both parties just need to sign the transfer documents we need to obtain clearance figures from the municipality we approach the deeds office the registrar of deeds is happy with everything we transfer the property and then if those people are still in the property good news for the listener we can most definitely evict them because now you are the owner of the property they are in the illegal occupation we can get the eviction and hopefully get you moved into that property yay well fantastic there might be a pot of gold at the end of the rainbow and a happy ending to the story I certainly hope that is the case silna and that this isn't an intentional case we mustn't overlook that where unfortunately somebody may have been duped because obviously if the property is not yours to begin with if you don't hold the title deeds you cannot be running around selling the property and I I know we've all read of stories where that's happened I've read stories where the same house has been sold multiple times or rented out multiple times to loads of different people who have all paid deposits and large sums of money only for this just to be a criminal activity as always silna stain the md of sslr incorporated attorneys there's there's no question that you are an expert when it comes to property law silna so thank you very much for answering that so well I'm even feeling a little nervous for this poor person because I mean 35 000 rand for many people is is probably almost your life savings so I really truly hope that this story does have a happy ending and please let us know just as you can in the comment section if you'd like to join in the conversation for your property rights podcast proudly brought to you by private property we would love to see what you have 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