Can a seller reclaim the house if the buyer has not paid for it but has the title deed?

The long answer

The common law in South Africa says that when an agreement fails, the parties must restore the status to the position they were in before the agreement was signed unless both parties have agreed that there is an exception to this rule.

But in order for this to happen, there must be a written contract that has been breached. All contracts contain three parts:

• An offer;

• Acceptance of the offer;

• Consideration. A consideration means what one party is getting from the other and what they are giving in return. For example, if party A is selling a bicycle to party B for R500, the consideration for party A is the bicycle and the consideration for party B is the R500.

When a property is going to be transferred from one person to another, it is through a contract called a Sale Agreement which has to be in writing, so all the conditions of the sale are clear, to be legally binding. Once the sale agreement is signed, both parties are bound by it, and if one party breaches the contract, they can be held accountable for damages by the other.

If your father had drawn up a valid and binding sales agreement that both he and the tenant signed, he would be able to go to court and demand that the tenant pay him, or sue the tenant for damages. 

The following three things must appear in a valid and binding sale agreement: 

• The names, ID numbers and addresses of both the seller and the buyer.

• A description of the property being sold by the seller, which includes the deed office’s description, the size and/or the street address of the property.

• The purchase price of the property that the buyer must pay. This must include how the buyer is going to buy the property, for example, in cash or by obtaining a loan, and if the buyer will pay a deposit or not.

If the buyer does not carry out what has been agreed to in the sale agreement, (in other words the buyer breaches the agreement of sale), the seller must notify the buyer to fix the breach within seven days. If the buyer does not fix the breach, the seller is entitled to go to court and demand that the buyer carries out the agreement, or the seller can cancel the sale agreement and sue the buyer for damages in court.

If your father and the tenant did not have a written sale agreement, I don’t know how the house could have been transferred into the tenant’s name. This transfer is done by a lawyer called a conveyancing attorney, who must transfer the house into the name of the new owner at the Deeds Office so that the new owner’s name is on the title deeds of the house. It would certainly not be acceptable for a conveyancing attorney to transfer the deeds into the new owner’s name without her having paid the purchase price. 

Your father should take all the documents he has, including the sale agreement if he has one, to a lawyer. If he cannot afford a lawyer, he can approach Legal Aid, which is a means-tested organisation. That means they must help people who cannot afford a lawyer. These are their contact details:

Toll-free helpline for legal advice: 0800 110 110 (Monday to Thursday 8am – 4pm and Fridays 8am – 1pm)

Please-Call-Me number: 079 835 7179

Wishing you the best,
Athalie