Real Estate Investor Magazine South Africa March/April 2019 | Page 9

with this position. There can be two possible situations in these cases; the first being that the property has not been transferred and the second, where transfer already took place. In a case where the property wasn’t transferred yet, we cannot even consider initiating eviction proceedings, due to a lack of standing before court. Only the regis- tered owner of the property, or the person in charge of the property (this will be a person who has the right to lease the property, for instance a tenant with the right to sub-lease) has the right to bring an eviction application. Unfortunately, the purchaser awaiting transfer, cannot be described as the person in charge of the property. This position was confirmed in Red Stripe Trading 68 CC v Mahlomola and Another (2011/06) [2006] ZAGPHC 39, where the court held that until the point of transfer, the purchaser is not in a position to bring an eviction application. Where the property was transferred the problem de- scribed above doesn’t exist. The problem in these cases only arise in the second part of your eviction applica- tion, being the duty to prove that the occupant is in ille- gal occupation of the property. Should the occupant be the previous owner or a tenant of the previous, and the sale and transfer is disputed and part of active litigation for a court to determine the validity of the sale, then a court will not be in a position to grant an eviction order. In these cases, the previous owner will usually bring a sperate application to interdict the new owner from trading with the property until the dispute regarding the sale has been determined by a court. It’s a pretty gloomy picture, unfortunately there isn’t much anybody can do at this point but to wait for a court to confirm or reject the validity of the sale, wheth- er before or after transfer. There is however a light at the end of this tunnel. The occupant, in the majority of these cases are running up utility bills, while the pur- chaser is already liable for payment to the municipality. In a case where you, as the owner or purchaser of the SOU TH AFR ICA N co.za www.reimag. .za ag.co reim www. SOU TH AFR ICA N SO A F R IC U T H AN www. © reim ag.co .za © YOUR FI FREE NANCIAL Ge DOM RN FOLIO prop tti er ng a footho G ld UIDE Property WOR ty ladd on the COM YOUR Hotsp LD ots PORT s Abound MERCIAL TRENDS er Multiple Opportunitie SMART Cape Town CBD Spike REAL ESTATE TECH PR M New Disruptors in the NOLOGY e ake more m OPERTY M Gam Game on ARKET sform Your Wea ERS Master PRO the Investment OFFSHO ey in 2017 Tran lth PERTY PRACTITIONE UK & US RE R’S BILL Invest Major Changes Afoot or h s Touc e Mida RISK VS RETU MIK W E ARREN R with th VESTO Gifted REAT in IN YOUTH IN PROPERTY to W Space S their TU ing STA Claim F JUN er K ty? OMY SA’S GROWING TICE ECON AC Cities or Prop ST of PR Two B A E Tale L A shore N NATIO Town’s Fore Y TECH INNOVATION pe ining Ca PROPERT rties g SA’s Township Prope Showcasin Y OR: OLOG Rights SRUPT HAIN TECH tle N s and Property LOCK Ac C cess to La JUNE nd Ti 2017 R80.00 (Incl. VAT) NER AWARDS WIN 0 6 0 SM 9 1 NALI A JOUR SAPO r Greate R80.00 17 MAY 20 1995 9 77 ) (Incl. VAT 0 0 9 5 655001 9 77199 05 01 6550 Property Year ion of the Publicat & 2015 2013 ROBE H R E T WEALT H PRO 7 Habi TECTION ts of Hi FL B A UF X FETT KIYOS M A A K S I R HA M B A A N WINNER SAPOA JOURNALISM JULY 2017 Property Publication of the Year 2013 & 2015 AUGUST R80.00 (Incl. VAT) 2017 WINNER SAPOA JOURNALISM AWARDS 06091 AWARDS Property 9 771995 655001 Friend ly Mar kets Publication of the Year 9 77 1995 2013 & 2015 6550 01 R80.00 08 (Incl. VAT 09 ) 3 SAPO WIN A JOUR NER NALI SM AWA RDS Property ion of 2013 & the Year 2015 Publicat If the sale was handled incorrectly and is set aside by a court, the purchaser might have a damages claim, depending on the particular facts of the matter. When you are in a position like this, you will have to wait for the underlaying litigation to be finalised, this can take up to two years which is why it is crucial to mitigate all other damages you will suffer. The very old rule applies in these cases, prevention is better than cure. If you are buying from a sale in execution or auction, attend to court to peruse the court file to see if the case was opposed and what the basis for the opposition was and the reasons why the court granted the order. Should you be buying from a deceased estate, arrange a meeting with the executor of the estate and find out if there is a will or if it is an intestate estate and understand who the beneficiaries are and if there will be any objection against the sale. Be sure that all parties are satisfied with the sale, only then conclude a sale agreement. Once an agreement has been concluded, it can only be cancelled in terms of the particular agreement, which is in most cases only based on breach of the agreement, in most cases litigation re- garding the validity of a sale will not constitute breach. Once you have concluded an agreement, you are bound by the terms of the agreement; be very sure that you understand the risks involved and are comfortable with the risks before you dive in. www.reimag. co.za © © property, are in a position where you cannot, for some reason in law, commence or finalise eviction proceed- ings, you can approach court for an order to mitigate your damages. It is illegal to disconnect utility supply to a premises, but in a case where the applicant can demonstrate to court that they have no other means of mitigating damages, the court will order the occupant to pay the utilities on invoice. If the occupant fails to pay in terms of the court order, the court will order that the sheriff, with the assistance of a plumber and electrician, be allowed to limit the water supply and disconnect the electricity supply. Effectiv e Trus ghly tees Fixing up Joz i Take your business or development to the next level Advertise in a leading property magazine. Contact Neale at: [email protected] | [phone]