Previously Married Persons and Contract of Sale or Lease

Anyone who has never married can enter into a contract of sale or lease, provided that he/she is:

-Not a minor, except for exceptions such as mentioned in Minors and a Contract of Sale or Lease”;
-Not under the influence of alcohol or drugs at the time of conclusion of the contract;
-Not insane;
-Not prohibited from concluding contracts without the assistance of a curator, in terms of a Court Order;
-Not an unrehabilitated insolvent.

Widows, widowers and divorcees have full contractual capacity, except for the exceptions mentioned above.

Minors and a Contract of Sale or Lease

A minor could be a party to a contract of sale or lease of immovable property, subject to certain requirements. You are regarded as a minor if you are under the age of 21 and unmarried. If you marry under the age of 21 you become a major and remain a major even if you get divorced before your 21st birthday.

A guardian can conclude a contract on behalf of a minor, but may not mortgage (bond) any immovable property belonging to the minor, unless authorised to do so by the Master of the High Court (if the property has a value of less than R100 000) or in terms of an Order by the High Court (if the property has a value of more than R100 000).

According to the Births and Deaths Registration Amendment Act (No. 1 of 2002) a minor is someone under the age of 18 years. This Act reduced the age of majority from 21 to 18 years. If the minor says he is older than 21 years and breeches the contract the other party may sue for damages. This law has not been passed through other laws Acts, therefore, to purchase property you still need to be older than 21 years or have guardian consent.

Who is the Owner of Immovable Property?

Who is the Owner of Immovable Property?

The owner is the person in whose name the immovable property is registered in terms of the Deeds Registries Act 47 of 1973. There are instances, however, where you can totally or partly own immovable property, without it being registered in your name. The following are examples of this.

By prescription – This means that you have been in possession of the immovable property, openly and as if you were the owner, for an uninterrupted period of 30 years or more. An example of this is a boundary between properties, which was placed incorrectly. The land on your side, which was not originally demarcated as part of your property can be acquired by prescription. It is unusual however, for a person to become the owner of a house through prescription.

By expropriation – This means that the owner looses his/her property to the State. An example of this is where the State expropriates your property in terms of the Expropriation Act 63 of 1975, to build a highway or railway through it, and thereby acquires ownership.

By marriage in community of property – Marriage in community of property means that you and your spouse will have a joint estate. Any property that is registered in your spouses name makes you the co-owner of the property, although the property is not registered jointly in both spouses’ names.

By declaring the registered owner of the property insolvent in terms of the Insolvency Act 24 of 1936. In this case, the master of the High Court will appoint a trustee who will be furnished with the power over the estate, including any immovable property that you own. Your rights and obligations as an owner will be taken away from you as the owner upon your insolvency, although the property is still registered in your name. You cannot sell or let the property without the written consent of the trustee of your insolvent estate. A person who is insolvent may only buy immovable property with the written consent of the trustee.

Starting Point Tips – 11

Step 11:

Conveyancing attorneys will now register your home loan and transfer the property into your name. The previous owner of the property will be paid and you will become a home owner.

Starting Point Tips – 10

Step 10:

You will need to apply for a homeloan. Once you have completed the home loan application forms, your bank will process the application and do the necessary credit checks and assessments. If everything is approved, you will receive a letter of approval giving the conditions and benifits of the agreement.

Starting Point Tips – 9

Step 9:

When the time comes to sign an offer to purchase, make sure you understand everything written in the contract. Do not sign a contract if you are unclear about anything. Rather ask advice from someone you trust.

Starting Point Tips – 8

Step 8:

While house-hunting, ask the estate agent and owner as many questions as possible about the property.

Starting Point Tips – 7

Step 7:

Do your homework before you house hunt:
- Decide what kind of home will suit your needs. Think about security, the size of your family, the suitability for your pets, etc.
- You should also consider the location in terms of travelling distance to work, schools and so on.
- Enquire about affordability of the schools, rates and taxes, levies and other expenses/facilities in the area.

Starting Point Tips – 6

Step 6:

Pay a visit to your bank, and ask a home loan consultant to assist you in finding out what amount you may qualify for, in terms of a home loan.

Starting Point Tips – 5

Step 5:

Make sure all your tax-affairs are in order. It won’t hurt to just make a phone call to SARS, to check whether all your tax-affairs are in up to date. Your new property will not register in your name if you have any outstanding SARS matters.