Answer to a question from a reader

My father is threatening to evict my brothers from his RDP house. What should they do?

The short answer

They might need legal assistance

The whole question

My mother and father were married in community of property and owned an RDP house. There is a deed of sale but no title deed. I assumed that there was no deed of sale for the house because the payment agreement, as stated on the deed of sale, was never met. 

My father left the house in 1997-1998 after he and my mother separated. My mother had three sons and continued living in the house until she passed away in 2018. My father has tried multiple times to evict her claiming that the house belongs to him but both their signatures are on the deed of sale for the house. My father is now threatening to evict my brothers.

He hasn't done anything with regards to home renovations or paying bills and there are some renovations that my mother made. Since my mother passed on, as the eldest son I have taken it upon myself to pay the bills and cover the costs of some renovations. I paid for the title deed, which I have not yet received because I was told that there wasn't a title deed for the house at the deeds office.

After their divorce in 2009, my mother continued staying in the house while my father started a new life and got remarried. Where do we as children stand with regards to the RDP house?  

The long answer

As your mother and father were married in community of property, they were the joint owners of the house, and would both need to consent to selling it. Marriage in community of property means that the two people become a single legal entity and everything is owned 50/50. This means that your father would have had no legal right to evict your mother as she and he jointly owned the house because they were married in community of property.

So when a marriage in community of property is dissolved by divorce, the assets must be divided equally between them. In the case of a house, either the one spouse buys out the half-share of the other and has the property transferred to his or her name, or the house is sold and each spouse gets half the money.

A divorce is finalised by a magistrate or judge granting a decree of divorce. Whatever settlement agreement the former spouses come to is incorporated into the decree of divorce which is then made an order of the court. Where a couple is unable to come to an agreement on how to divide their joint estate, the court can appoint a liquidator to work out how much the estate is worth and divide it between them.  

So perhaps in the first place you should look into what the decree of divorce in 2009 actually said about the house. Unfortunately the fact that your father has not done anything to maintain the house since he left does not affect the legal issue of ownership.

You could also take this information to Legal Aid and find out what your legal options are, as your mother’s heirs:

 

Legal Aid Advice Line (toll-free): 0800 110 110

Please-Call-Me number: 079 835 7179

Email: communications2@legal-aid.co.za

Answered on May 22, 2020, 4:26 p.m.

See more questions and answers