Property interdicts and its role in the transfer process

Property interdicts and its role in the transfer process

Private Property South Africa
Private Property Reporter

During the process of registering a property, every Deeds Office in the country will undertake an interdict search against that property, as well as the buyer and seller.

Simply put, an interdict is a court order that forbids an action (prohibitory) or restrains individuals unless they fulfil certain obligations (mandating), or requires the return of a possession to someone (restitution) or a remedy to the problem.

An interdict is a valuable tool for the protection of people’s rights and to prevent harm. It must also be noted that alongside interdicts are caveats or endorsements; such being an existing home loan, or mineral rights on the property. These three words - interdicts, caveats, endorsements - are interchangeable, but effectively when any of them are linked to a property, they will completely halt the deed transfer until the issue is resolved.

Examples of property interdicts include:

  • A property that has been attached by the sheriff of the court.
  • When the owner has been declared insolvent or there is a judgement against the seller for the repayment of debts.
  • The property is bonded. (Note: the amount registered may be the registered amount, not necessarily the outstanding amount, but this is adjusted during the transfer process).

Seller’s obligations

When a home loan is registered over a property, the title deed is endorsed with the amount owed by the owner, and to whom. When that bond is cancelled, which usually happens during the during transfer process, the title deed is amended, which will then allow the transfer of the property to proceed.

Legal costs of lifting an interdict are paid by the seller who will need to obtain consent from the party who placed the interdict on the property, to sell; or apply for a rescission of judgment. A rescission of judgment basically means the case will be reopened to examine whether the original judgment will be set aside.

Before a court will consider lifting a property interdict, outstanding debt on the property must be settled, or at least guaranteed before the sheriff can instruct the Deeds Office to remove the interdict. This can take a minimum of a month.

Property practitioner and the OTP

An agent is not obligated to pre-check for interdicts. However, seller’s should inform agents of any known interdicts so they in turn can inform the transferring attorney. This information must be included in the Offer to Purchase (OTP). It obviously depends on the nature of the interdict that will determine whether the buyer wishes to proceed with the transfer regardless, understanding that it will likely delay the deed registration process.

Rental properties Interdicts are also applicable to rental properties. Called a Rental Interdict Summons, these are issued by a court when a landlord needs to compel a tenant to pay on defaulted rental, or face legal consequences. This may also include potential eviction.

Landlords will approach a Magistrate’s Court citing the tenant’s failure to pay rent. Claims are examined and if found valid, the summons is issued and served to the tenant, demanding rectification.

Tenants who have been issued with a rental interdict summons are legally obliged to respond to the summons or face further legal consequences.

Check for interdicts

Individuals are entitled to check if there are interdicts against a property. You can get information from, in respect of the property, which can be undertaken online at a fee.

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