Can my father, who is in prison, sign his house over to me? I don't know when he will be released.

The long answer

A prisoner is allowed to sign a legal document transferring ownership of his house to his daughter, but he would have to do it through a Notary Public who would have to visit him in prison to witness his signature. 

A notary public is a specialised lawyer who has the legal authority to witness signatures and authenticate documents. So, for your dad to sign a legal document, the notary public would go to the prison and verify your dad’s identity using the documents that the prison authorities provide. The notary public would show your dad the document to be signed and explain it carefully, making sure he understands and is signing of his own free will. In other words, that he does not feel forced to sign.

After witnessing the signature, the notary public would affix their official seal and signature on the document to prove that it is authentic.

But before we get to the notary public’s visit to the prison, there are a number of steps and costs involved in transferring a house to a family member: if the house is valued above R100,000, and it is being given to you, rather than being sold, a donations tax of 20% on the value above R100,000 will be charged by SARS.

But whether it is being sold or donated, a conveyancing attorney (a property transfer lawyer) must draw up a deed of sale or deed of donation. The conveyancer must also verify the title deeds, draw up the necessary legal documents and make sure that all the municipal rates and taxes have been paid so that you can get a municipal clearance certificate from the municipality. The municipality must issue a clearance certificate before the conveyancer can register the transfer of the house with the Deeds Office. The new title deed for the house will then be issued in your name.  

So even though it’s your dad’s house, there will be costs involved like paying the conveyancer and the notary public, besides paying the municipal bill in full.

Perhaps your best bet would be to go to Legal Aid and ask for assistance. It is a means-tested organisation that must assist people who can’t afford a lawyer. 

These are their contact details:

Tel: 0800 110 110 (Monday to Friday 7am – 7pm) 

Please Call Me: 079 835 7179

Email: communications2@legal-aid.co.za

Wishing you the best,
Athalie