Jose Delgado, Director at Delgado Velosa Kenworthy & Associates, answers this week’s property question.
Dear REImag Team,
I have a co-joint property bond with a friend which we verbally agreed we will rent out. The process went so well and she recommended the bond is deducted from my account and she will transfer her share to me. She did one month’s payment, while I was doing the marketing for the place to find tenants – when she said she wanted to get out of the deal.
While still waiting and attending to the matter I managed to find tenants. When she saw that she no longer wanted to be out. For four months I was the one doing maintenance on the house. She promised to settle the difference. It’s been over a year now and she is behind with her payments. But I want separation but she doesn’t want to sell to me. I even found people to buy the house, but she won’t budge.
At the outset, it is of paramount importance to plan and ensure that the optimal structures are in place.
There are many options but in this case the parties opted for a partnership, this is a simple default option but is fraught with vagaries. In most cases, the partnership is not regulated by a partnership agreement that results in unfulfilled promises and defaults on the verbally agreed obligations by either or both of the parties.
In the case of the partnership, the property is registered in the name of both parties (generally equally but this has not been confirmed in this case but we will assume the arrangement is 50/50).
Accordingly, the obligations of the parties are equal in that they must equally contribute to any costs and the administration of the property. Further, the profit or loss on the property must be borne equally between them. Further, there are administrative issues that both must carry out pertaining to the property. E.g who will manage the property? Who will handle the finances, the books of account, payment of rates, taxes, levies, the bond, tax returns financials etc?
All the issues raised above can be regulated in an agreement or can be verbally agreed, the latter arrangement can be very difficult to prove hence the importance of an agreement.
The crisp issue that our reader seeks advice on is how to remedy his current dilemma.
The answers are many and varied.
The simple option is to demand that the other party perform their obligations either verbally or in writing, if this fails then the legal route must be followed.
He can attempt to sell the property BUT the partner may not be amenable to this course of action and can block any attempts to sell the property as they will have to agree and co-sign any sale agreement, transfer and bond cancellation documents. This route may come to nought.
Due to the value of the property, we assume the claims do not exceed R20 000.00, further as the relief sought is against a natural person, he can approach the Small Claims Court that can make an order against the non-performing partner. The process is cost effective as the reader can represent himself and does not require an Attorney.
If the claims exceed R20 000.00, then he will need to approach an Attorney who will represent him in claiming against the defaulting partner for monies due and owing.
An alternate course of action may be for Chumile to instruct the Attorney to dissolve the partnership. This will entail an application to court and the appointment of a receiver to account and deal with the property. This can be very costly and take an inordinate amount of time to resolve.
The chilling reality is that the bank may take action against both parties if he does not take action or does not continue to pay the various costs associated with the property! A real bind.
Space constraints do not allow us to more fully expound on the various aspects of the remedies listed above but it is evident that one must plan and the correct structures or have the requisite agreements in place.
If not and a dispute ensures, legal action is sure to follow to enforce one’s rights.