The Property Poser panel helps a reader this week whose elderly parents have had to sell their house due to financial difficulty but have now been served with an interdict halting the transfer process.
The reader explains that when their issues started they fell in arrears with the bond payments. Plans were made to pay a portion of the outstanding repayments and the balance was restructured as part of the outstanding bond, which increased the monthly instalment.
To avoid landing in this situation again, the decision was made to sell the property. A suitable buyer was found and the transfer process commenced.
The conveyancing attorneys eventually contacted the reader to inform her that the transfer had to be put on hold following the discovery of an interdict, which prevented her parents from selling the property.
The attorney suggested that they consult with another attorney who could assist in rescinding this interdict, thereby allowing them to proceed with the transfer.
Not too long after this conversation, the reader was advised by the same attorney that her parents should approach the bank, as the bondholder, and obtain a letter confirming the removal of the interdict, which could then be sent to the deeds office.
Despite following these instructions, the bank advised that the attorney should see to the removal of the interdict. The reader is now quite confused as to what process to follow.
She mentions that the bond has still not transferred to the buyer. Her parents have handed the keys over to the estate agent and are worried that if anything were to happen to the property, they would still be liable for the damages.
It is difficult to ascertain from the given facts who obtained the interdict says Rian du Toit from DTS Attorneys in Port Elizabeth.
“We cannot merely assume that it was the bank, since, as bondholder, they are a preferred creditor upon the sale of the property. Any other creditor would also be able to attach the property, subject to the preferent rights of the bank.”
Du Toit says a bond is registered with the deeds office and, upon any sale, would first have to be settled.
“This brings us to the point that, in the transfer of the property, a bond is not transferred.”
Instead, the bond has to be settled at the same time that the property is transferred to the new owner, says Du Toit.
“Should the purchaser also require a bond to finance the sale, a new one is registered in his or her name.”
It is the seller’s responsibility to see to the transfer of the property, says Charlotte Vermaak from Chas Everitt, PE.
“Therefore, if there’s an interdict preventing the reader’s parents from doing so, it’s their responsibility to see to its removal.”
Vermaak says they need to ascertain who obtained the interdict by conducting a search at the deeds office.
“They must then contact the attorney who acted for the creditor and arrange to pay any outstanding debt from the proceeds of the sale.”
Once this has been done, says Vermaak, that attorney will arrange with the Sheriff of the Court to uplift the attachment so that the transfer may proceed.
“As the reader correctly pointed out, until the transfer to the new owners is registered, the current owners still carry the risk with regard to damage.”
They are bound to transfer the property in the state it was in when the sale was concluded, says Vermaak.
“The reader should investigate what became of the payments to the various attorneys and any progress made with regard to the interdict.”
Article source: http://mype.co.za/new/2012/11/interdict-halts-property-transfer/