My parents pruchased a property cash in ...

Asked by Frederic on 08-10-2018 15:22:56
Question posted in the Property Law category relating to Free State
Question value: R 300.00

My parents pruchased a property cash in decmber 2017. The seller passed away and the spouse/relatives of the seller withheld this vital information and we only found out the day the property was going to be transferred as the transfer was pulled back due to the passing of the seller. The original transferring attorney and the estate attorney (which was appointed by the sellers spouse after passing) are now in disagreement ever since and the transfer is not being done. The original transferring attorney is claiming a reimbursement for the work he has already done seeing that the transfer was already lodged and the estate attorneys demand the documents from the transferring attorney which he is not willing to give unless he gets reimbursed. Is there anything we can do to get this transfer through and surely witholding the passing of the seller is a criminal offence and the person should be held accountable? it has come to a point now where my parents will be forced to pull out the sale as they can no longer afford the occupational rent they are demanded to pay. Should it come to the point that my parents can no longer afford to pay occupational rent and are forced to pull out the sale will they be helkd liable for any costs? Also would they be held liable should they decide to pull out the sale before?

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Answer to the Question

Posted by Att. Patrick on 08-10-2018 16:01:39

Hi there and thank you for your question,

If I understand you correctly, does the estate attorney still intend proceeding with the transfer of the property? In law, you've got a signed agreement which the estate is bound by. The estate attorney can't therefore cancel the sale.

I think perhaps what's happening is that the estate attorney wants to CHANGE the identity of the transferring attorney (to perhaps his own firm! - who knows) and that is why the transferring attorney is demanding that he be paid before he hands over the file.  I'm assuming this because you said "original transferring attorney".

If the estate attorney wants to change transferring attorneys - they can do this - but original transferring attorney IS entitled to be paid for his work.

I think what your parents need to do is to meet with the estate attorney and demand that the transfer be lodged as a matter of urgency, and give the estate attorney 10 days to confirm (in writing) that the transfer will be lodged.

Your parents can say (please use a lawyer before you make threats) that they are going to be withholding the occupational rental until such time as they receive confirmation as to date of transfer as damages.

It isn't a criminal offence - unfortunately.

The occupational rental amount must be agreed upon in the sale agreement, or otherwise in writing, otherwise they can't simply DEMAND that your parents pay whatever they want.

If your parents try to pull out of the sale, they run a serious risk that the transferring attorneys hold them liable for the wasted costs of preparing the transfer documents. Also, the estate attorney could allege that this is a breach of the sale agreement and sue your parents for damages.

If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.

Att. Patrick

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Information provided by client

Hi Patrick,

Thank you for your reply.

That is correct, the estate attorney insists to do the transfer of the property and requested the documents for the transfer from the transferring attorney (appointed by the seller which passed away) The transferring attorney demands to be paid, which is only fair as he did all the work for the transfer. We tried holding back the occupational rent but the estate attorney let us know that we will be in breach of contract if we do not pay the occupational rent so my parents paid the occupational rent as demanded. I have been in communication with both attorneys on a weekly basis via email since may this year that the property should be transferred as a matter of urgency but this is falling on deaph ears and the two attorneys are beating around the bush on my parents expense! Not to be funny but it is desgracefull to exploit 2 pensioners like this and that there is nothing that we can do about it.

Regards,
Frederic

Answer to the Question

Posted by Att. Patrick on 08-10-2018 17:38:12

Hi there Frederic,

You should send the estate attorney a letter of demand to demand that he transfers the property to your parents without delay. If you use a lawyer to assist you in getting the wording right, you could argue that the estate attorneys "refussal" to transfer the property to your parents amounts to a repudiation of the sale agreement. That would then allow your parents to accept the repudiation and cancel the sale and sue the estate attorney for damages.

Your parent's lawyer could also perhaps contact the estate attorney and the old transferring attorney to suggest that they settle their disputes, failing which your parents will file a complaint with the Law Socirty against them.

I still think that you should explore the withholding occupational rental issue. I think that it might work.

If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.

I am afraid that I am not allowed to refer you to a specific lawyer, however I can suggest that you can locate a suitably qualified lawyer in your area who will be able to assist you with your query at Search through a list of 401 Law Firms, Lawyers and Attorneys who operate in Property Law Practice Area. You can use the left hand menu on that website to refine your search to lawyers working in your area!

Att. Patrick

Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.

Answer Accepted

This answer was accepted on 09-10-2018 09:52:00

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