Can I sell my property?

The question above may at first seem simply to answer, however there are a few aspects one must consider very carefully before an accurate answer can be provided. Property has such a wide variety of meanings that it is almost impossible to define accurately or exhaustively, however for present purposes property shall mean land one owns. The mere fact that you are recorded as the registered owner of the property in itself does not mean that you can deal with it as you wish due to that there maybe have been a change in your status since the registration of the property had taken place.

Before you can answer the question above you must first answer the following questions:

1 Do I have the capacity to act?

  1. If the answer to the above question is yes, is that capacity to act limited or restricted in any way?

Do I have the capacity to act?

In our law the age of an individual is an important indication as to whether or not such a person has the capacity to perform a legal act; such as enter into an agreement for the sale of property which is registered in his/her name. Persons who have no contractual capacity are those between the ages of 0-6 years (commonly referred to as infants). The natural or legal guardians of an infant will conclude all legal acts on their behalf with the authorisation of the High Court as the upper guardians of all minors. This ensures that the property of the minor is protected and used for the benefit of the minor. Minors between the ages of 7-17 have limited contractual capacity and must be assisted by their parents or natural guardians again subject to the authorisation of the High Court as the upper guardian of all minors.  Once a person attains the age of 18 years he/she can perform any legal act without the assistance of his/her natural or legal guardians, provided that his/her capacity to act is not limited or restricted in any manner.

Is my capacity to act limited or restricted in any way?

Although a person may be regarded as a major and therefore has the capacity to perform a legal act, his/her capacity to act may be limited or restricted. What follows is a brief overview of a few ways within which a person’s capacity to perform a legal act may be limited or restricted.

Marriage

In terms of South African law the default position is that should a couple conclude a marriage without executing an antenuptial contract prior to the solemnization of their marriage they shall be regarded as being married in community of property. This type of marital arrangement creates one undivided joint estate between the parties who shall share equally, in respect of the fruits and the debts of the marriage. In other words each spouse will own an undivided share in all the assets and debts his or her spouse owned or incurred prior to the marriage subject to a few exceptions. It is clear that spouses who have entered in a marriage in community of property have limited contractual capacity with regard to the performance of certain acts. The Matrimonial Property Act states clearly for which acts the consent of your spouse will be required as well as the requirements of such consent. When it comes to the sale of land which is registered in the name of a person who is married in community of property the Matrimonial Property Act states that the spouse who wishes to sell the property which forms part of the joint estate cannot do so without the written consent of his/her spouse which consent must be attested by two competent witnesses. In practice, in order to avoid issues with regard to the consent referred to above both parties are requested to sign the sale agreement. Section 15 of the Matrimonial Property Act 88 of 1984 sets out the powers each spouse has with regard to the assets that form part of the joint estate. While spouses who are married in community of property have full capacity to act such capacity is limited in certain instances.

Other factors which can affect a person’s capacity

Mental illness

A person who has been declared by a court of law to be mentally ill does not have the capacity to act even if such person has attained the age of majority. In this instance a curator will be assigned by a court to act on behalf of such person. The powers to dispose of land shall vest in the curator and will be exercised in accordance with the authorisation of the High Court.

Insolvency

As a general rule, an insolvent is not deprived of his contractual capacity. However, an insolvent may not without his/her appointed trustee enter into a contract in which he disposes or acquires any land. The fact that a person is an un-rehabilitated insolvent does not mean that when property is acquired by him/her that such property must be transferred to his appointed trustee. The property is transferred into his name (registered in his name and no reference is made to the fact that he is insolvent on the Title Deed).

In order to ensure that the transaction unfolds in an orderly fashion all information and documentary proof that is called for by the Estate Agent and later on by the Attorneys must be provided. It is from this documentary evidence that both the Estate and the Attorney will be in a position to determine if the person/s they are dealing with has full and unrestricted capacity to conclude the sale agreement.

BY: JERSHWIN KHAN – ATTORNEY, CONVEYANCER & NOTARY PUBLIC (RANDLES ATTORNEYS)

 

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