Buying one party’s share of a jointly owned property

There are a number of ways to deal with the undivided shares in fixed property held by two or more people. In the case of joint ownership by married persons, one such way is by one party becoming the sole owner of a property. The process for this will depend heavily on the matrimonial regime selected at the time of marriage.

The ins and outs of subject to bond approval clauses

Terms of the settlement

The settlement agreement between the spouses will dictate how the fixed property registered in both their names will be dealt with. For example, if one spouse is awarded the house in terms of the settlement, the other party’s half share will have to be transferred to that party and the marital regime will dictate how this transfer is to be done.

If the parties were married in community of property, the transfer of the half share may take place by way of endorsement in the Deeds Office in terms of Section 45 of the Deeds Registries Act, 47 of 1937. This is an abbreviated form of transfer done by way of application, specifically catering for marriages in community of property being dissolved as a result of divorce or death. If the parties were married out of community of property, the transfer of the half share will have to be done by way of conventional transfer. In other words, the process followed will be the same as with the typical purchase and transfer of a property.

By law, a share in fixed property is an undivided share and can only be equated to percentages and not to a specific portion of the property. The transfer of an undivided share will take the same time as a normal transfer subject to the parties and the shareholding being uncomplicated and certain.

Transfer fees

The transfer fee payable in a situation where one spouse is buying the other’s share in a jointly owned property will be based on the value of the property as a whole. Transfer duty will be calculated on the value of the whole property and then divided by the relevant percentage held.

Financing of the property

A bond registered over a property held in the name of more than one party can be dealt with in one of two ways, subject to the bank’s credit approval. Firstly, the existing bond can be cancelled and a new bond be registered in the name of the remaining sole owner. This can be quite a costly exercise as there will be a bond cancellation and a registration fee, however, in certain circumstances a bank may insist on this course of action.

Alternatively, the one debtor/owner can be substituted as the sole debtor/mortgagor under the bond. This will be done in terms of an application to the Deeds Office to this effect in terms of Section 57 of the Deeds Registries Act. The bondholder will have to consent to this application and  the costs of such application will be less than the aforementioned cancellation and registration.

The simplest course of action before initiating a transfer of ownership to one of the property’s co-owners is to consult with reputable conveyancing attorneys who will be able to offer advice on how best to proceed depending on the specific case.

Follow Snymans on Facebook for more legal information, tips and news about property.

Recommended for you

Minors and immovable property
Contractual Matters

When ownership of immovable property is vested in a company[post_view before=""]

There are instances where ownership of land is vested in a company. Typically, a company is registered, usually with one or two directors, and such company then takes transfer of the immovable property. The land is then held in the name of the legal entity (being the company), with the individuals or directors who intend to stay there holding shares in the company.

Read More
Property Blog Articles | Advice | Contractual Matters | Market News
Contractual Matters

An ethical approach to fee discounts[post_view before=""]

Legal fees are regulated by tariff guidelines, which are issued by the Rules Board in terms of the Legal Practice Act. Although these tariffs are guidelines, they are typically followed in the conveyancing industry. As a result, if fees are ever queried, they can usually be backed up by the regulations issued in the Government Gazette from time to time.

Read More
Minors and immovable property
Contractual Matters

The Property Practitioners Act 22 of 2019: what you need to know[post_view before=""]

In 2017, the Government undertook to interrogate the Estate Agency Affairs Act and replace it with one it deemed more suitable. The result was the Property Practitioners Act (PPA), which came into effect on 1 February 2022. In this article, we’ll be touching on some of the highlights – or lowlights, depending on your point of view – of this new act.

Read More
Minors and immovable property
Contractual Matters

Suspensive conditions revisited in the Cape Royal case[post_view before=""]

South Africa’s law of contract provides several ways in which contracting parties can protect and enforce their contractual rights. The most essential principle of contract is party autonomy – parties to a contract are free to conclude what they have agreed to, and the courts have a duty to enforce this agreement as far as possible provided it is not against the law.

Read More
Property Blog Articles | Advice | Contractual Matters | Market News
Contractual Matters

Pay with complete peace of mind[post_view before=""]

With cybercrime on the increase globally, the team at Snymans is increasingly aware of the importance of safeguarding both our clients and our business against cyber criminals when it comes to making and receiving electronic payments. In fact, phishing crimes have become such a cause for concern in South Africa that the Legal Practitioners’ Fidelity Fund has declared that it will not make good on insurance claims arising from these types of crimes.

Read More

Need more Snymans content?

Sign up for our monthly newsletter.

Buying one party’s share of a jointly owned property

There are a number of ways to deal with the undivided shares in fixed property held by two or more people. In the case of joint ownership by married persons, one such way is by one party becoming the sole owner of a property. The process for this will depend heavily on the matrimonial regime selected at the time of marriage.

The ins and outs of subject to bond approval clauses

Terms of the settlement

The settlement agreement between the spouses will dictate how the fixed property registered in both their names will be dealt with. For example, if one spouse is awarded the house in terms of the settlement, the other party’s half share will have to be transferred to that party and the marital regime will dictate how this transfer is to be done.

If the parties were married in community of property, the transfer of the half share may take place by way of endorsement in the Deeds Office in terms of Section 45 of the Deeds Registries Act, 47 of 1937. This is an abbreviated form of transfer done by way of application, specifically catering for marriages in community of property being dissolved as a result of divorce or death. If the parties were married out of community of property, the transfer of the half share will have to be done by way of conventional transfer. In other words, the process followed will be the same as with the typical purchase and transfer of a property.

By law, a share in fixed property is an undivided share and can only be equated to percentages and not to a specific portion of the property. The transfer of an undivided share will take the same time as a normal transfer subject to the parties and the shareholding being uncomplicated and certain.

Transfer fees

The transfer fee payable in a situation where one spouse is buying the other’s share in a jointly owned property will be based on the value of the property as a whole. Transfer duty will be calculated on the value of the whole property and then divided by the relevant percentage held.

Financing of the property

A bond registered over a property held in the name of more than one party can be dealt with in one of two ways, subject to the bank’s credit approval. Firstly, the existing bond can be cancelled and a new bond be registered in the name of the remaining sole owner. This can be quite a costly exercise as there will be a bond cancellation and a registration fee, however, in certain circumstances a bank may insist on this course of action.

Alternatively, the one debtor/owner can be substituted as the sole debtor/mortgagor under the bond. This will be done in terms of an application to the Deeds Office to this effect in terms of Section 57 of the Deeds Registries Act. The bondholder will have to consent to this application and  the costs of such application will be less than the aforementioned cancellation and registration.

The simplest course of action before initiating a transfer of ownership to one of the property’s co-owners is to consult with reputable conveyancing attorneys who will be able to offer advice on how best to proceed depending on the specific case.

Follow Snymans on Facebook for more legal information, tips and news about property.