Legal advice Needed – Property rights

[Rockhound]

I bought a house with a bachelors flat ten years ago from an insolvent estate by way of signing an offer to purchase, paying a deposit and arranging a bond for the balance.
I was in my early twenties at the time and was just glad to be a homeowner and did not think I needed to do anything else.
For ten years I have been paying my bond and either renting out the flat or the house as supplementary income for the bond and happily living my life.
The end of last year my neighbour of ten years children sold her house to Mr x.
The beginning of this year Mr x phones me at my work and says he what to come see me at my work. I think nothing of it and agrees.
When he meets me he informs me that the back 3rd of my yard with the bachelors flat and my parking actually belongs to him per his title deed.
Needless to say I was shocked to the depths of my soul.
I told him that it is impossible because my yard is surrounded by four walls and I have been living like that since I bought the property 10 years ago and the previous owner never said one word to me about me occupying part of her property. Also how can it be that the bachelors flat is part of his property when the water and electricity for the flat feeds from my municipal meters.
He said he did not care and I should vacate his property within 30 days.
The first thing I did was try to get all my papers from 10 years ago and go see a lawyer.
The offer to purchase I signed only had the street address of the property on it and no mention of erf number or m² on it. (Probably a mistake on my part but I did not know any better)

I did a search of my property at the surveyor general office so that I could get a map of my property and see where the boundaries are. I got map dated 2001 where the back and front of my property was consolidated as one erf. The previous map was dated 1998 and showed only the front part of my property. I bought the property in 2003 and was of the impression that the newest map would be applicable.

The title deed to my property I had not ever seen because the bank had it because of the bond. I got a copy from the bank but it showed my property as being only the m² of the front part.

Also contacted the municipality but that was of no use as they don’t have any records of the bachelors flat building plans and when asked why the water and electricity from my meter is supplying the neighbours property they said that from beyond the meter is not their business.

Go to lawyer and he says I must pay R5,000.00 deposit and he will investigate at deeds office and contact the neighbours lawyers.
After two weeks lawyer comes back with same documents that I already gave him and asks if me and neighbour wouldn’t like to try and settle.
I just want this whole mess to disappear and offers the neighbour R100,000.00 for my back yard which is very reasonable since a vacant erf which is 3 times the size sells for R80,000.00.
He comes back with counter offer of R250,000.00 for my property which is what I paid for my house ten years ago, which I consider as an insult. My municipal valuation is R450,000.00 and my replacement value on homeowners insurance is R1,300,000.00
The lawyer tells me now the only choices I have is to pay R30,000.00 for an advocate and if I lose it could be double that or give in to demands.

I don’t have that kind of money and if I made a plan I don’t want to pay it twice and still lose my property.
I lived 10 years in peace with previous neighbour and there was a map that also showed it was my property. Only the deeds office that did not show the same.
Do I have a case? Is there anything I did not think of?
The previous neigbours husband died 11 years ago and the other party is insolvent from whose estate I bought and I do not know her whereabouts. I have nobody to contact in regard to consolidation of my property and why it does not show the same at deeds office.
Any advice would be appreciated.
Thanks.

 

[Hosehead]

Which lawyer did the actual conveyencing for you & ( your bank) at the time of your purchase and granting of bond of the sale in execution.- if it was ? or an insolvency auction? ie. who did you pay your deposit to and copies of Id etc.
Do you have the papers from the insolvency sale detailing what exactly was for sale (and what you were buying) -and who were the sellers? the Liquidators, executors, sherriff, Auction house or estate agents?
Can you ask your current lawyer if there is actual case law covering this scenario. (there may be) just yes or no will suffice and what dates were the house and flat built? (to ascertain prescription)
That the neighbour of 10 years nor her children never had a problem with your occupancy prior to the sale to Mr X is rather strange.
Lastly if the most recent property survey was in 2001 where are the pegs? You bought in 2003 Prior to that in 1998 there were 2 or more erven (If I am not mistaken) and these were allegedly consolidated into one in 2001. Who were the surveyers on the 1998 survey and 2001?
There shouldn't be any negotiations at this point until all the pertinent facts have been ascertained. Never admit liability.
Without prejudice If I was you I'd get another lawyer, preferably a conveyencer with many years experience.

 

[Paul Hjul]

IANAL but I would seriously get another lawyer

On the version you have given you have occupancy of the land which he wishes to evict you from and you have had this occupancy for more than 6 months. This is not an instance of the mortgage exception and so PIE comes into effect. To force you vacation he must approach the court to seek your eviction and prove that you are in unlawful occupation of the land - he must also meet up with the interests of justice etc .... His attitude that you must vacate in 30 days suggests to me that he is trying to force you into accepting a raw deal from him and responding that he is welcome to attempt to establish that your occupancy is unlawful - first and foremost proving that he, and not you, is the owner of the property in question, that there is no servitude (usufruct or usus or ...) or other animal giving you a right to occupy the land.

 

[Rockhound]

Which lawyer did the actual conveyencing for you & ( your bank) at the time of your purchase and granting of bond of the sale in execution.- if it was ? or an insolvency auction? ie. who did you pay your deposit to and copies of Id etc.

I payed the deposit to estate agent but the company does not exist anymore. He was acting on behalf of FNB liquidators.. The conveyencing was done by Pretoria attorney. My lawyer contacted him but only answer he got was that he was acting upon instructions from bank. The bond was registered by local attorney and his answer was that he was only responsible for bond.

Do you have the papers from the insolvency sale detailing what exactly was for sale (and what you were buying) -and who were the sellers? the Liquidators, executors, sherriff, Auction house or estate agents?

My lawyer ascertained who liquidators was and has contacted them. Still awaiting reply. As said. Estate agent does not exist anymore. Unfortunately don't have papers detailing what was for sale. Only have offer to purchase with street address of property and purchase price.

Can you ask your current lawyer if there is actual case law covering this scenario. (there may be) just yes or no will suffice and what dates were the house and flat built? (to ascertain prescription)

Will ask. My house was build in the 70s but as there is no building plans for flat it is impossible to say. But the flat was already their when I bought the property.

That the neighbour of 10 years nor her children never had a problem with your occupancy prior to the sale to Mr X is rather strange.

Exactly. That is why this whole thing is distressing.
I have been renovating the flat and my house for 10 years and now someone claims part of it.

Lastly if the most recent property survey was in 2001 where are the pegs? You bought in 2003 Prior to that in 1998 there were 2 or more erven (If I am not mistaken) and these were allegedly consolidated into one in 2001. Who were the surveyers on the 1998 survey and 2001?

For the 2001 survey the pegs are for the whole erf as I believed it for 10 years to be. Basically the corners of my four walls.
In 1998 the pegs cut off the back part of my erf. It is the same surveyor for both the 1998 and 2001 plans.
The lawyer contacted him and he told the lawyer that the deceased husband of my previous neigbour gave him instructions to do the consolidation. He also said that he gave the original of consolidation to deceased husband and his fee was paid. He did not keep documents from 10 years ago as the job was complete. He is close to 70 years old and is semi-retired. He told me that the deceased and the previous owner should have registered it with deeds office and he only does surveyor plans.

There shouldn't be any negotiations at this point until all the pertinent facts have been ascertained. Never admit liability.
Without prejudice If I was you I'd get another lawyer, preferably a conveyencer with many years experience.

Thank you very much for your reply. I just made offer to get rid of this matter. But you are right.
Perhaps other legal advice is better idea. I unfortunately don't have money to burn.

 

[Rockhound]

IANAL but I would seriously get another lawyer

On the version you have given you have occupancy of the land which he wishes to evict you from and you have had this occupancy for more than 6 months. This is not an instance of the mortgage exception and so PIE comes into effect. To force you vacation he must approach the court to seek your eviction and prove that you are in unlawful occupation of the land - he must also meet up with the interests of justice etc .... His attitude that you must vacate in 30 days suggests to me that he is trying to force you into accepting a raw deal from him and responding that he is welcome to attempt to establish that your occupancy is unlawful - first and foremost proving that he, and not you, is the owner of the property in question, that there is no servitude (usufruct or usus or ...) or other animal giving you a right to occupy the land.

Thank you also for the reply.
I am also not a lawyer and don't know much about these things.
The new neighbours lawyers delivered a letter on me last week that stated that this week Friday his client will take possession of his property and demolish everything.
Now this scares me as I build parking for my vehicle 5 years ago and that cost me 10k back then.
Also made lots of improvement to flat but they are fixed. The parking can be moved as it is a steal frame that can be unbolted.
If I am to loose the flat, at least I don't want to loose everything.
My lawyer says I must do nothing as I have retention rights on improvements.
I am just afraid the neigbour will demolish everything and I will be screwed.
He is definitely intimidating me in to accepting a raw deal.
What is ''PIE comes into effect"?
My lawyer told me I need to get interdict to stop him and that is going to cost a lot of money.

Any advice or opinions welcome.

 

[Paul Hjul]

PIE is the Prevention of Illegal Evictions and Occupation of Land Act and it specifically protects a person against capricious and unlawful evictions - which his taking possession and demolishing would amount to. An interdict from the High Court would be the way to go but I don't understand why a lawyers letter threatening to secure an urgent interdict in the event that the patently unlawful threat of violence is not withdrawn hasn't been issued. An interim interdict by way of a rule nisi would cost you money but on being confirmed - because what he is threatening is illegal - costs will be partly recoverable and I can't see why a judge would not be amenable to awarding costs on attorney own client if an interdict is proved necessary.

 

[Freshy-ZN]

Rock hound, where is the property located?

 

[Ancalagon]

If you cant find any evidence to support either his claims or your claims, where is he getting his information from?

 

[ToxicBunny]

Rock hound, where is the property located?

Was about to ask this myself.

Most larger municipalities have GIS databases with ERF boundaries on them.

He is also no allowed to summarily take possession and demolish the structures on the portion of property he has placed into dispute.

 

[Rockhound]

The property is located in Northwest Province in smaller municipality.
Don't know about "GIS databases with ERF boundaries on them".
But went to municipality and they have the same map on file as me. The one dated 2001.

(Here is 2001 map that I have. Blackened out some of numbers for privacy)

If you cant find any evidence to support either his claims or your claims, where is he getting his information from?

My claim is based on surveyor general map as well as having believed to have bought the whole erf with flat, etc and living like that for 10 years.
His claim is based on deeds office record with 1998 map and shows he owns BCDEFHB as per attached map.

Thanks all for replying.

At least my fears are somewhat alleviated in regard to him summarily demolishing things.

Any further advice appreciated.

 

[Budza]

Good luck, now and later when living next to this new oke...

Glad you've got the same docs as the municipality- 2001 should replace 1998 records.

I hope your offer doesn't come back to bite you in the arse.

DO NOT admit he has any claim!!!

 

[froot]

My claim is based on surveyor general map as well as having believed to have bought the whole erf with flat, etc and living like that for 10 years.
His claim is based on deeds office record with 1998 map and shows he owns BCDEFHB as per attached map.

What did your offer to purchase and so forth say about the flat, etc? Because obviously you mention those things in the contract.

 

[ToxicBunny]

2001 SG records should trump his title deed with 1998 sg record.

Send a letter to his lawyer stating should he attempt to take occupation of land and demolish sturctures that belongs to your ERF as per property records held by the municipality, you will proceed to take legal action for full costs plus damages.

 

[froot]

2001 SG records should trump his title deed with 1998 sg record.

Send a letter to his lawyer stating should he attempt to take occupation of land and demolish sturctures that belongs to your ERF as per property records held by the municipality, you will proceed to take legal action for full costs plus damages.

I asked a lawyer and it comes down to conflicting opinions.

Generally transfer of property is only completed once the title deed [or such] is filed with the relative authority.
But....
There is also some mention of if you marry in community of property, then the above is obviously in conflict.

But yes, until such time that there is a definite legal opinion or lawful judgement saying that you should vacate, I would sit my ass down.

 

[ToxicBunny]

^^^ Yup agreed.

Pretty much why I said should

But since the OPs neighbour is using lawyers letters and stuff, I would be suggesting the OP do the same since the neighbour is clearly not wanting to try and sort this amicably.

 

[Rockhound]

Good luck, now and later when living next to this new oke...

Glad you've got the same docs as the municipality- 2001 should replace 1998 records.

I hope your offer doesn't come back to bite you in the arse.

DO NOT admit he has any claim!!!

Thanks. Also hope it doesn't come back to bite me in the arse.
Just wanted the end of this.

What did your offer to purchase and so forth say about the flat, etc? Because obviously you mention those things in the contract.

I was naive and yound at the time.
It only said offer to purchase property situated at ............ street, Town Name and purchase price.
I believed I was purchasing everything as the house and flat in on same yard surrounded by four walls.

^^^ Yup agreed.

Pretty much why I said should

But since the OPs neighbour is using lawyers letters and stuff, I would be suggesting the OP do the same since the neighbour is clearly not wanting to try and sort this amicably.

Thanks.
Will go see lawyers this afternoon again and if I don't get satisfactory answers will go to different lawyers in the week.
Just like you said he does not want to sort this amicably and is scaring me with lawyers letters.
Will let lawyers sort this out.

I asked a lawyer and it comes down to conflicting opinions.

Generally transfer of property is only completed once the title deed [or such] is filed with the relative authority.
But....
There is also some mention of if you marry in community of property, then the above is obviously in conflict.

But yes, until such time that there is a definite legal opinion or lawful judgement saying that you should vacate, I would sit my ass down.

This is a bit worrisome. Wish it was more straightforward.
But you are right. Will sit my ass down.

Thank you all who replied.
This was starting to give me depression and I feel like I have some hope again.

 

[Budza]

This was starting to give me depression and I feel like I have some hope again.

Good thing you asked!

Hope you come right

 

[Humberto]

Perhaps the legal beagles amongst us can shed some light on whether any claim on the disputed property will not have prescribed by now.

 

[AlmightyBender]

He can't demolish. That is an idle threat and is just to intimidate you. Don't pay it any attention as it would be illegal for him to do that. He would need to legally evict you. And as stated: DO NOT ADMIT LIABILITY.

 

[Freshy-ZN]

Forget lawyers. You need to consult a PLS ( Professional Land Surveyor). They are the experts when it comes to property boundaries and what they say is law. In fact you should demand that your neighbor provide evidence from a PLS to support his claims.