Property law advice

[maeev]

Hi MyBB'ers

Hoping someone on the forum has legal knowledge or experience with what I'm about to ask, I'm in a situation where I purchased a house with someone in a 50/50 split but things have become unaffordable and I need out of the acquisition

The other person can't afford to buy my share out and is also refusing to sell the whole house

Renting the house out isn't an option as it doesn't come close to covering the expenses

So without going into too much further detail and all other options eliminated, I believe my only option is to take it to court in order to get the property sold. Having said that, if you were to thumb-suck a figure, how much would it cost me this to court, and how long does the process usually take?

 

[ITCynic]

That would have to be in a High Court matter and last year an attorney quoted me 30K just to lodge papers so if you have money for a High Court application the other side might claim you have enough to pay your share of the bond.

Tricky situation to be in, my sympathies.

 

[maeev]

Do you know how long it usually takes for the high court to hear the case and what other fees would I be looking at?

Thanks for the response ITCynic, were you able to sort your predicament out?

 

[HavocXphere]

Property law is not exactly something that is common knowledge, so perhaps a lawyer is a better idea than an IT forum if you want to get solid advice...

 

[ITCynic]

Do you know how long it usually takes for the high court to hear the case and what other fees would I be looking at?

Thanks for the response ITCynic, were you able to sort your predicament out?

Dont know how long it takes, did not proceed as I did not have the money. Depends when you get on the court roll. Can take months.

As HavocX suggested it would be better to seek legal advice directly from a lawyer who has property experience.

 

[maeev]

Dont know how long it takes, did not proceed as I did not have the money. Depends when you get on the court roll. Can take months.

As HavocX suggested it would be better to seek legal advice directly from a lawyer who has property experience.

Thanks guys

 

[CAPS LOCK]

If you are a free co-owner, you can alienate your 50 percent share of the property without needing the other's consent? Don't have to sell the actual house. Problem is, I don't see a huge market for people wanting to buy undivided shares in a house.

 

[nivek]

You can't be forced into keeping an asset you don't want, and while the other party cant be forced to sell, if they cant afford the asset on their own then they cant expect you to fund it for them

I'm in a similar situation, but I haven't reached out to lawyers yet, I want to give the other party one last opportunity to sort themselves out....

Good luck!

 

[SoTrue]

I am not a laywer, but my understanding is that any rights/obligations relating to fixed property must be contained in the title deed. Which would mean that you can't just sell your 50% share without the other party's consent and cooperation.

 

[Drifter]

Keep in mind that for the High court you need an advocate, a normal lawyer wont suffice.

 

[senyetse]

Also in the same situation. Have received initial legal advice. If the other party is unable to buy you out they are legally obliged to agree to sell. A party cannot be kept in a co-ownership agreement against their will. If the other party refuses to sell nor can buy you out you have to get a court order ordering the sale. I have not yet taken it further as we want to exhaust all avenues for a resolution so can't give an indication of costs for this. But, you may be able to sue for costs - depends on your situation. Best to consult with a property lawyer on how to proceed. First step would probably be for lawyer to draft up letter to the other party informing your intention to sell and pursuing a court order if refused.

 

[desiganp]

Do you know how long it usually takes for the high court to hear the case and what other fees would I be looking at?

Depends on which area the High Court is in. In big city like JHB or Durban, you are looking at about a minimum of 2 months to get a date on the roll when the matter is ripe for set down (i.e. ready for hearing/trial). This is excluding the period for any proceedings that may take place before that and between exchanging of papers between the parties. Realistically it could take 6-12 month+ to finalise if there are no delays etc.

The costs of the proceedings to finalisation will probably be anything from R50-100k plus. If OP is successful, the costs of the legal proceedings can be recovered from the other co-owners portion of the proceeds from the sale of the property (after settling creditors). This can be made an order of the court. Other costs incurred, such as transfer costs, estate agents fees etc, may need to be recovered from the sale as well.

Keep in mind that for the High court you need an advocate, a normal lawyer wont suffice.

Many attorneys have right of appearance in the High Court. You do not need an advocate if the attorney has right of appearance and is knowledgeable enough to handle the case.

If the other party is unable to buy you out they are legally obliged to agree to sell. A party cannot be kept in a co-ownership agreement against their will. If the other party refuses to sell nor can buy you out you have to get a court order ordering the sale.

This is correct. OP's possible options are :

1. Allow the bank to foreclose the property - worst option since there are consequences for OP (and co-owner) in terms of insolvency, bad credit record etc. If OP threatens this route, co-owner may be pushed to act in a rational manner and arrange the sale.

2. Sub-divide the property, each of the co-owners will then own 100% of their sub-division. OP can then sell his/her sub-division.

3. Obtain a court order to force the sale.

 

[senyetse]

If OP is successful, the costs of the legal proceedings can be recovered from the other co-owners portion of the proceeds from the sale of the property (after settling creditors). This can be made an order of the court.

What if proceeds of the sale are insufficient and other co-owner is not able to cover shortfall? Can OP be held responsible for shortfall?

 

[desiganp]

What if proceeds of the sale are insufficient and other co-owner is not able to cover shortfall? Can OP be held responsible for shortfall?

Yes, OP will still be responsible for the shortfall in terms of the obligation with the bank. The court can only order the sale, the legal obligations regarding the bond agreement will not be affected.

OP could request in the court order that the property be auctioned at reserve price or failing which the property is sold through the normal channels, subject to the sale price being sufficient to settle the existing debts on the property.

 

[senyetse]

Yes, OP will still be responsible for the shortfall in terms of the obligation with the bank. The court can only order the sale, the legal obligations regarding the bond agreement will not be affected.

OP could request in the court order that the property be auctioned at reserve price or failing which the property is sold through the normal channels, subject to the sale price being sufficient to settle the existing debts on the property.

And legal costs? Can OP be held liable for a shortfall in case where other party is not able to cover it?

 

[desiganp]

And legal costs? Can OP be held liable for a shortfall in case where other party is not able to cover it?

Yes, OP's lawyers will still expect him to settle his own legal bill (in the event that OP is successful in obtaining the court order and the other party is unable to pay OP's legal costs as directed by the court).

If OP is successful in the case, he will usually not be liable for the other party's legal costs. If OP is unsuccessful, then it is possible OP may become liable for his own plus the other party's legal costs.