How can I transfer an RDP house which is in my father’s name to my mother’s name if he left the house to me and my siblings in his will?
The short answer
If your parents were married in community of property, which is likely, then the RDP house belongs to them both, jointly.
The whole question
My late father drew up a will that leaves his RDP house to me and two of my siblings in the event of his death, but we want to transfer the deed from his name to my mother’s. My mom lives in the house and my parents have not lived together for nearly ten years.
The long answer
First, if your parents were married in community of property, which they would be if they did not take out an ante-nuptial contract before getting married, then the RDP house belongs to them both, jointly. In the event of your father’s death, the community of property marriage regime would mean that 50% of the property would go to your mother in any case, and the remaining 50% would be distributed to you three children, as per his will.
When they applied for an RDP house, both of their names would have been recorded on a database. Once they separated, they would not be granted another subsidy with a new partner, as you can only ever get one RDP subsidy.
If they got divorced, one partner would generally take over the house while giving the other an agreed amount of financial compensation for their half share of the house. Or they could agree to sell the house and split the money equally.
Section 9 (1) of the Divorce Act of 1979 also allows one spouse to ask for the benefits of the other spouse to be forfeited, and if that spouse could prove to the court that the other spouse would “benefit unduly” by keeping the patrimonial benefit (the 50% share of the joint estate), the court could grant a forfeiture order. But as Professor Clement Marumoagae has pointed out, the courts have not yet indicated what “benefiting unduly” would mean.
As the house is registered in your father’s name, and if he agreed in the divorce to have it transferred to your mother’s name, a full transfer of ownership in the Deeds Office would be required. That would mean that your mother would have to pay the fees to a conveyancing attorney to do the transfer in the Deeds Office, and this would be upwards of R8,000 or so.
This would also be the case if they divorced and your mother kept the house and paid some financial compensation to your father for his half share of the property.
Abrahams and Gross’s article says: “The party who will take transfer of the property or the party purchasing the property due to the property being sold per the divorce order, will be liable to pay conveyancer fees, administration fees, bond registration fees (if applicable), transfer duty (if applicable), deeds office fees, postage and petties … etc. The party who will be disposing of the property will be liable to pay rates and taxes, levies, cancellation costs … etc.”
Miltons Matsemela says that if the house is currently registered in only one of the spouses’ names and that spouse is to keep the house, no formal transfer nor endorsement of the title deed would be necessary. But if, however, the other spouse is to become the registered owner, a full transfer of ownership in the Deeds Office is needed.
So to sum up, transferring the house to your mother’s name would most likely require a divorce agreement that gave your mother the house and your father some financial compensation for his half share of the joint estate. In either case, your mother would still have to bear the costs of a full transfer of ownership through the Deeds Office.
Perhaps you should take some legal advice on how to approach it. You can ask Legal Aid which is a means-tested organisation which must assist people who can’t afford a lawyer. These are their details:
0800 110 110 (Monday to Friday 7AM – 7PM)
079 835 7179 (Please Call Me)
You could also ask the Black Sash for free paralegal advice at:
Helpline: 072 66 33 73
Wishing you the best,
Answered on April 20, 2023, 11:38 a.m.