The short answer
You could take your mother to Legal Aid and ask them to approach the court for a declaratory order that your mother is the legal owner of the house.
The whole question
My mother bought an RDP house from a woman in 2005 for R25,000. The woman has recently died. Now her adult children want the house which we extended. They claim their mother never sold the house and she is still the registered owner with the deeds office. The only proof of purchase my mother has is an affidavit made at the police station by both parties. How do we then go about getting the property into my mother's name? There is no title deed for the house issued as far as we know. Please help.
The long answer
Thank you for your email asking how you can get an RDP house into your mother’s name when there is no title deed.
In the first place, you would need to check whether there was ever a title deed issued for the property, since the children of the deceased person who sold the house to your mother in 2005 are claiming that their mother is the registered owner with the deeds office. It could be that there was a title deed issued to the original owner but because of the long, costly process involved with transferring the deed, the seller may have opted to sell the house informally, using the affidavit system.
You can check whether there was a title deed issued by visiting your nearest Deeds Office in person and asking them to do a search for the title deeds. You will have to pay about R14.00 for them to search, and you will need to give them the erf number of the property as well as the full name and / or ID of the deceased.
Secondly, although it cannot replace a title deed legally, if the affidavit which was signed by both your mother and the deceased seller at the police station is dated and has the ID numbers of both parties, it is a significant document which your mother can use to assert her ownership of the house. You could take your mother to Legal Aid and ask them to approach the court for a declaratory order that your mother is the legal owner of the house. You would need to take the affidavit, and any other documents which prove that your mother paid for extending the house after buying it would also be helpful.
If the court declares your mother the rightful owner, and there was a title deed issued, she can take steps to get it transferred to her name. But this is a lengthy and expensive process which involves lawyers doing the transfer, known as conveyancing, and registering the property at the deeds office.
There is an organisation called the Centre for Affordable Housing Finance (CAHF) which has set up a Transaction Support Centre in Khayelitsha in Cape Town which has been assisting sellers and buyers of RDP houses with expediting sales and the whole title deeds process since 2018, but we don’t know if you are in that vicinity. CAHF says only 1.88 of the 3.5 million RDP houses have got title deeds.
It is also possible to deal with disputes about ownership in informal sales cases by using the Land Title Adjustment Act of 1993. This Act allows the title deed to be allocated to a person claiming ownership of a property without title deeds, where there is a dispute over ownership. The Act requires that the Minister of Rural Development and Land Reform must designate the land which can be allocated under the Act and must also appoint a Commissioner to deal with each case. The Commissioner has the power to allocate the property to the claimant and to transfer it directly to the claimant. The Minister can instruct Parliament to pay the transfer costs, according to the financial situation of the claimant.
This law appears not to have been used very much, but as it seems suitable for solving a lot of problems like informal sales and deceased estates, the Transaction Support Centre, set up as a pilot project in Khayelitsha by CAHF, has approached the Minister to ask for guidance in using the Act for a small number of test cases.
Perhaps you could approach the municipality of your area and ask if they can assist you to get the title deeds transferred or issued.
This is the contact information for Legal Aid (which is a means-testing organisation):
Reception (National Office): 011 877 2000
Legal Aid Advice Line (Toll-free): 0800 110 110
Legal Aid Ethics Hotline: 0800 153 728
Please-Call-Me number: 079 835 7179
Answered on Sept. 13, 2019, 3:28 p.m.
Please note. We are not lawyers or financial advisors. We do our best to make the answers accurate, but we cannot accept any legal liability if there are errors.