What do I do if my deceased father sold his property but there was no title deed transfer?

The long answer

As you probably know, the title deeds to a property are the only legal proof of ownership of a property. If your father sold the property legally, he would have had to provide the title deeds to the conveyancing attorney so that they could be transferred to the new owner.

Property24.com points out regarding title deeds that, "… in addition to declaring legal ownership, the document also contains important information about the property, including a comprehensive description and exact size of the property as well as the rules and restrictions surrounding the property. The document also shares some insight into a property’s history, including the name of the registered owner and previous owners and the purchase price paid by the current owner."

In terms of there being no proof of the sale transaction: In South African law generally, verbal agreements are as binding as written and signed agreements, though obviously more difficult to prove. But in the case of selling property, the sale needs to be in writing. 

However, in terms of the Electronic Communications and Transactions Act, all electronic messages, whether an SMS, WhatsApp message, Facebook message, e-mail or fax, are considered to be written agreements between the parties, and will be accepted as evidence if presented in court. 

In a legal contract such as a deed of sale, there are three essential agreements between the seller and the buyer: 

• What the property is;
• The price of the property, which is what the buyer agrees to pay the seller;
• The obligation of the seller to deliver the property to the buyer.

If you do not have a copy of the title deeds, you could establish from the Deeds Office whether your late father was the legal owner and get a copy of the title deeds. You would need to go in person to the nearest Deeds Office and take a certified copy of your late father’s ID, if you have that, his full name and the erf number of the plot and ask them to check. You would have to pay a search fee of R87.00. 

The death of a seller before the sale has been completed does not make the sale invalid. If it can be proved that there was indeed a binding contract, this will continue to be binding even after the death of one of the parties.

If the buyer of the property can prove that he paid the amount agreed between him and your late father – in other words, he fulfilled his contractual obligation – then he can demand that the seller’s obligation, which is to deliver the property, is fulfilled, and that the deeds be transferred to him. In other words, the buyer could enforce the deal through a court order.

If it was an RDP house which had not yet had title deeds issued, you could go to the municipality which would have the beneficiary’s details. You know that RDP houses may not be sold before eight years have passed since the beneficiary received the house.

Perhaps you should get legal advice about how to proceed. 

You could ask Legal Aid, which is a means-tested organisation that must assist people who cannot afford a lawyer.

Here are their contact details:

• Legal Aid Advice Line (Toll-free): 0800 110 110
• Please-Call-Me number: 079 835 7179

You could also ask the Black Sash for free paralegal advice:

• Email: help@blacksash.org.za
• Helpline: 072 66 33 739

Wishing you the best,
Athalie