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.” 

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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.” 

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