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Thursday Nov 25, 2010

Faulty contract cost owner her property

Buying property is considered one of the biggest investments one can make. But the dream of owning your home could be shattered by not understanding your contract.

If you don't understand the contents of your contract or the estate agent doesn't correctly explain the terms and condition of the sale to you, you could lose everything you have put in.

It happened to Mavis Mutisse of De Deur, who thought the property was hers until people arrived at her home ordering her to "put wheels" on it and move because the land she had built on wasn't hers. They said the land had belonged to their late daughter Caroline Mafisa, and they had not given anyone permission to sell it.

Mutisse showed them receipts of the payments she made for the land, along with a letter from the Midvaal Municipality approving her building plans.

Two years later, a police woman arrived at her house, claiming that she had also bought the same piece of land from the Mafisa family and ordered Mutisse to vacate the property. When Mutisse refused to leave, the policewoman swore at her and broke her windows with bricks.

Mutisse approached The Star for help.

Then Allan McLoughlin, the conveyancer who was supposed to have transferred the land to Mutisse and register it under her name, dropped a bomb: the property was never registered in Mutisse's name and now belongs to someone else who had legally bought it from the Mafisa family.

This is even though Mutisse and her former husband paid R35 000 for the land over seven months rather than the five years stipulated in the deed of sale. She had also been paying money towards transfer costs over the years. But McLoughlin said the deal was cancelled and the estate agent kept the money because Mutisse took long to cover the entire cost. Mutisse did not know that she had a limited time to settle everything or risk losing her money and property.

Mutisse bought the 8 000m2 piece of land in 2004 from Noel Evans of Southern Country Estate Agency. Evans prepared a contract that Mutisse and her husband signed. Evans has since died and his company does not exist anymore.

McLoughlin said the couple should have employed a lawyer to look at the contract because he could have seen some of the pitfalls that have now resulted in Mutisse losing the R35 000 she paid for the land and the house she built on it.

The other thing, he said, is that the lawyer would have brought to her attention that in a deed of sale, paying off the money for the property did not automatically mean that you were the owner. Mutisse's contract states that the money she paid for the property over five years would also be used to cover the rates and taxes. Another clause said she would be liable for the rates and taxes upon occupation - but did not say anything about what would happen if she paid the money off quicker than the five years stipulated.

When she occupied the land, she also took over the previous owner's unpaid rates and taxes, which increased every month, and when she and her husband battled to pay them, the seller cancelled the deal.

The contract also stated that in a breach of contract situation, the seller had the right to cancel the contract and retain the property as well as monies paid. But it is not clear what constitutes a breach of contract.

Mutisse, who lives with her eight-year-old son, is set to lose the spacious house she built. The property was registered under the policewoman's name in June.

McLoughlin said it would have been the estate agent's responsibility to inform Mutisse of the terms of the contract because he was the one who had insisted that the deal be cancelled when the money was not forthcoming.

"Before you sign any contract, go to your lawyer," he warned.

"The lawyer could have seen the contradictions in the contract because if you do not, by the time you realise the pitfalls it will be too late. Evans did not want to wait and wanted the contract to be cancelled and kept asking that I do. I kept sending letters to Mutisse to ask her to pay because she was the one who entered the contract with Evans and I am just a conveyancer and cannot change it," McLoughlin said.

An official at the Midvaal Municipality confirmed that the land belonged to the policewoman and not Mutisse, who had thought that because the municipality had connected water and electricity on her property and was billing her, it must be hers.

Mutisse has now employed a lawyer to help her keep the property.

The Star


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