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Conveyancing and Property Law Property Law
Question:
Immoveable Property
Hi When we got divorced(2006), it was agreed that the house be sold when our kids become "age of majority". The property is registered in both our names according to the Deeds office, but my ex is the bondholder at the bank. Questions; 1. At what age must the property be sold? What age must the kids be? 2. Can my ex, without my knowledges, apply for substitution of debtor at the bank using our divorce papers ? Regards L J

Replies:

Dak dak, Legal Advisor

( rating 120

)

2012-06-18

Your children reach the age of majority at 18 years. If the wording of your divorce agreement is as you have set out, then the house cannot be sold before your youngest child reaches age 18.

If the house is in the sole name of your ex, he can mortgage or increase the bond over the property without your consent. However, I would recommend that you write to the bank holding the bond and send the bank a copy of the divorce order, together with your request that the bank must therefore inform you, as the rights of your children will be affected, in the event that your ex wishes to cancel, amend or increase the amount of the bond.

I am not sure what you mean by 'apply for substitution of debtor at the bank'. I assume from what you say, that the property is in the name of your ex only. If it is in both his and your name, then he can do nothing with the property or the bond, unless you also sign and agree.

jl46	2012-06-18

Hi

Is the age of majority not 21, since we got divorced in 2006 and then the age of majority was 21?

No the property is in both our names at the Deed office, however my ex pay for the bond. I went to the bank to ask what the balance of bond is as I'm considering taking over my ex part of the house so we(kids and I )dont loose the house when my ex want to sell the house.

The bank refuse to give me any informationa as my ID doesnt give them any information once typed in on bank's pc. After a few attemps at different brances, I manage to fiind out that my ex "apply for substitution of debtor at the bank' and thats why they cant give me any info.

Questions;
1. Can he do that without informing me?
2. How do I found out what the balance of house is , as I get a half on profit when house get sold.

Dak dak, Legal Advisor

( rating 120

)

2012-06-18

No, since from July 2007, the age of majority has been 18. If, however, the divorce order stipulates the actual age, e.g. 21, then irrespective that age (21) would apply.

Since the property is in your joint names, there is nothing your ex can do without your consent. You CAN therefore write to the bank, as co-owner of the property, as I suggested in my first Reply above. The bank cannot refuse to give you the relevant information as the joint owner of the property.

Perhaps it is only the debit order details or some such thing which was changed to 'substitution of debtor'. You have to authorise and sign for any material changes before the bank can do anything.

Likewise, the bank is obliged to give you a statement upon request, in terms of the National Credit Act, amongst other legislation.

You can also threaten to report the bank to the National Consumer Commission and the Banking Ombudsman if they fail to comply with your lawful request.

jl46	2012-06-18

Hi

Can I report the bank to the National Consumer Commission and the Banking Ombudsman, if the bond is registered ONLY in his name?

Dak dak, Legal Advisor

( rating 120

)

2012-06-18

Yes, because if the property is registered in both your names, then the bond can ONLY be in both your names as well.

jl46	2012-06-18

Hi
Thanks for your speedy reply. I thought it was funny that my ex needed my signature to apply for a 2nd bond in 2005 and yet in 2008 he took the divorce papers and ask bank for 'application for substitution of debtor at the bank'. The bank didn’t inform me as they regard the divorced papers as sufficient proof to go ahead and allow him to take an additional loan to pay off the exciting house loan on the house I live in uptill now.

It was all too confusing for me : (

Now I know my ex did something illegal.

Thanks again for your help.

Dak dak, Legal Advisor

( rating 120

)

2012-06-18

It is doubtful that the bank would have 'substituted the debtor' on the bond, unless it was lawfully entitled to do so. Perhaps you should upload a copy of your divorce settlement agreement onto freelegaleagle's website, so that I can read through this and then advise you.

jl46	2012-06-18

IMMOVEABLE PROPERTY
1.The Defendant (me) & the party's minor children shall have the exclusive right to use & occupation of the party's jointly owned im.property situated @.........
2.The Plaintiff(my ex) shall be liable for the bond payments in respect of the parties jointly owned im.property situated.... , until the said bond is settled in full or the property is sold
3.The Plaintiff shall be liable for payment of insurance,security,municipal rates & taxes in respect of the im.property.
4.Defendant shall be liable for the cost of water & elec. in respect of the im.
5.The parties further agreement that the property shall be sold when their youngest surviving child attains the age of majority subject to the following provisions;
A.The aforementioned property shall be marketed by an estate agent appointed by the parties & sold as soon as is reasonably possible for a price acceptable to both parties.
B.The proceeds of the nett proceeds of the sale of property shall be divided as follows(The Defendant shall received 60% & the Plaintiff 40%of the nett proceeds of the envisaged sale)
C.After the date of signing of this Deed of Settlement,neither party shall,save
with the consent of the other party,further encumber the property with an increase of the current mortgage bond or by taking out a further mortgage bond.
D.Notwithstanding any this in the foregoing,the parties reserve the right to sell the property @ anytime in the event of both parties agreeing thereto in writing.

Dak dak, Legal Advisor

( rating 120

)

2012-06-18

It appears that you are fully covered in terms of the above wording. So, he cannot sell or bond the property any further without your written consent.

He is solely responsible for the bond repayments, insurance, security,municipal rates & taxes. You are liable for the cost of water & electricity only.

The rest is perfectly clear.

jl46	2012-06-18

Hi
The guy at the bank told me, after calling their housing department, that my ex took out a bigger bond(in 2008) on the property I live on (the property mentioned in divorce agreement) which cover the existing mortgage bond. Im sure he used the rest of bond money for personal use.

However I wasn’t notify about it and have no access to that account at bank, as it's no longer in my name. Apparently the reason the bank approved of this transaction was because we were no longer married at that time(2008). We got divorce in 2006.

Regards

Dak dak, Legal Advisor

( rating 120

)

2012-06-19

Well, that is highly irregular on the part of the property if you are a co-owner thereof, and arguably fraudulent. You should therefore go ahead and report the bank to the National Consumer Commission and the Banking Ombudsman.

jl46	2012-06-20

Hi
How do I het hold of this Banking Ombudsman? and do I have to pay ?

Regards
L J

Dak dak, Legal Advisor

( rating 120

)

2012-06-20

You can contact the banking ombudsman via 'How do I complain' and the National Consumer Commissioner at the links below. You do not have to pay.

http://www.obssa.co.za/

http://www.nccsa.org.za/index.php/Complaints/Complaints.html

jl46	2012-06-20

Hi

I send them an email and waiting their answer. Thanks for all your help.

Regards
L J

jl46	2012-06-20

Hi
I just spoke to the banks home loans department and the refuse to give me any statements, as the account is in my ex husband's name. They don’t care in whose name the house is registered in, only the account holder's name.

What do I do now. Without prove I cant lay a complaint.

regards

Dak dak, Legal Advisor

( rating 120

)

2012-06-20

Your proof lies in the fact that in the Deeds Office, the property is registered in both your names. This is deemed to be public knowledge, so the bank cannot deny such knowledge. You must therefore proceed with your complaints to the Ombudsman and the NCC.

Dak dak, Legal Advisor

( rating 120

)

2012-06-20

Please close your question and rate my advice.

jl46	2012-06-20

Hi

Thank you

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