Court ruling: Can you sell a property that’s not in your name?

The recent judgement in the matter of Tomlinson and Another v Tomlinson N.O and Others (11764/2015) [2021] ZAKZDHC 8 (19 March 2021) in the Kwazulu-Natal High Court, Durban has drawn attention to whether someone is able to sell a property if he or she is not the registered owner.

Buying Property On Auction | Property Blog Articles

The facts of the case

Mr and Mrs Thomlinson were married in community of property and, while both were still alive, owned a property known as Erf 110 Ifafa. When Mr Tomlinson passed away in December 2012, he left his half undivided share of their property to his sons, Mr Robert and Mr Denzel Tomlinson. 

Mrs Tomlinson later sold her half undivided share in the property to the first applicant in the case, Mr Robert Tomlinson, as an offset to loans she had taken from him when she ran into financial difficulties following her husband’s death – this contract was entered into before the estate of the late Mr Tomlinson was wound up. 

When Mrs Tomlinson later passed away on 20 October 2014, the property had still not been transferred into Mr Robert Tomlinson’s name. Mrs Tomlinson’s daughter was appointed executrix of her mother’s estate on 9 February 2015 and refused to accept the claim made by her brother to transfer the property in terms of the agreement.

The court’s decision

It was confirmed in paragraph 21 of the judgement that “there is no requirement in our law that a deed of sale of immovable property must be signed by the owner or by someone authorised to sign on the owner’s behalf as seller.” 

Judge Olsen referenced A J Kerr, The Law of Sale and Lease 3 ed (2007) at page 7 in his judgement: “The tendency is to assume that, apart from questions of agency, only the owner of a thing can sell it. This again overlooks the fact that in entering into a contract one is undertaking an obligation or obligations, not doing what an obligation requires. So if A sells B’s property to C the resultant legal position is that A is obliged to make B’s property available to C. He will therefore attempt to obtain it. If he succeeds, he can make it available to C and the contract is performed. If B will not let him have it, he (A) fails to perform and is in breach of contract. In such circumstances, C has an action against A for damages for breach of contract. It is not so uncommon as may be thought for someone to sell someone else’s property.” 

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

Recommended for you

Property Blog Articles | Advice | Contractual Matters | Market News
Legislative Guidelines

SPLUMA certificates required for property transfers in Mpumalanga[post_view before=""]

SPLUMA stands for the Spatial Planning and Land Use Management Act, and SPLUMA certificates are governed by the act together with the by-laws of each local municipality.

Read More
My name has changed - what happens to my property’s title deed?
Legislative Guidelines

Trust investments and the Legal Practice Act[post_view before=""]

The Legal Practice Act, which has replaced the Attorneys Act, has made some changes regarding monies paid into attorney trust accounts and the investment of this money on a client’s instructions.

Read More
Historical monuments and renovation restrictions
Legislative Guidelines

Destruction of a sectional title scheme: precautionary steps to take[post_view before=""]

There are several reasons why a landowner or developer may decide to build a new development in the place of an existing sectional title scheme. For example, the existing scheme may be dated and no longer suited to the area. Or the demand for residential units may be very high but the old development is undesirable.

Read More
My name has changed - what happens to my property’s title deed?
Legislative Guidelines

21 facts you should know about the POPI Act[post_view before=""]

On 1 July 2021, the Protection Of Personal Information Act 4 of 2013 (POPI Act) comes into full force and effect. While the Act was signed into law on 19 November 2013, the majority of its sections were only implemented on 1 July 2020, with a one-year grace period. Now, with the remaining sections coming into effect on 30 June 2021, the Act becomes enforceable by the Regulator.

Read More
Amendments to the Financial Intelligence Centre Act (FICA)
Legislative Guidelines

The FIC Act: How it’s tackling money laundering in South Africa[post_view before=""]

The Financial Intelligence Centre (FIC) defines money laundering as “the process used by criminals to hide, conceal or disguise the nature, source, location, disposition or movement of the proceeds of unlawful activities or any interest which anyone has in such proceeds.”

Read More

Need more Snymans content?

Sign up for our monthly newsletter.

Court ruling: Can you sell a property that’s not in your name?

The recent judgement in the matter of Tomlinson and Another v Tomlinson N.O and Others (11764/2015) [2021] ZAKZDHC 8 (19 March 2021) in the Kwazulu-Natal High Court, Durban has drawn attention to whether someone is able to sell a property if he or she is not the registered owner.

Buying Property On Auction | Property Blog Articles

The facts of the case

Mr and Mrs Thomlinson were married in community of property and, while both were still alive, owned a property known as Erf 110 Ifafa. When Mr Tomlinson passed away in December 2012, he left his half undivided share of their property to his sons, Mr Robert and Mr Denzel Tomlinson. 

Mrs Tomlinson later sold her half undivided share in the property to the first applicant in the case, Mr Robert Tomlinson, as an offset to loans she had taken from him when she ran into financial difficulties following her husband’s death – this contract was entered into before the estate of the late Mr Tomlinson was wound up. 

When Mrs Tomlinson later passed away on 20 October 2014, the property had still not been transferred into Mr Robert Tomlinson’s name. Mrs Tomlinson’s daughter was appointed executrix of her mother’s estate on 9 February 2015 and refused to accept the claim made by her brother to transfer the property in terms of the agreement.

The court’s decision

It was confirmed in paragraph 21 of the judgement that “there is no requirement in our law that a deed of sale of immovable property must be signed by the owner or by someone authorised to sign on the owner’s behalf as seller.” 

Judge Olsen referenced A J Kerr, The Law of Sale and Lease 3 ed (2007) at page 7 in his judgement: “The tendency is to assume that, apart from questions of agency, only the owner of a thing can sell it. This again overlooks the fact that in entering into a contract one is undertaking an obligation or obligations, not doing what an obligation requires. So if A sells B’s property to C the resultant legal position is that A is obliged to make B’s property available to C. He will therefore attempt to obtain it. If he succeeds, he can make it available to C and the contract is performed. If B will not let him have it, he (A) fails to perform and is in breach of contract. In such circumstances, C has an action against A for damages for breach of contract. It is not so uncommon as may be thought for someone to sell someone else’s property.” 

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