Avoiding a sale in execution

On a daily basis the owners of land or houses are confronted with the reality that their properties are being sold by the Sheriff of the High Court without their knowledge. This mostly happens when owners have registered a bond over the properties and fail to pay the instalments. In actual fact owners should be served with all documents before the Sheriff can attach the house or land. This order can only be issued by the High Court in respect of immovable properties. The Registrar of Deeds will be served with such an order and has to make an entry of such an attachment against the said property’s records. The effect of such an order is that only the Sheriff can deal with the property and the owner cannot have any dealings with the property. It is noted as I2000/2020AT against the ownership of the property. It is thus important for all owners to check the status of their homes or properties in the Deeds Office to make sure that they are not attached.

After noting such an order the Sheriff will then sell the property on public auction to the highest bidder. Only the Sheriff can sell or deal with such property. The bonds registered against the property will fall away on the sale of the property as it is a forced sale. The Sheriff does not have to lodge the title deeds when transferring such properties. It is therefore totally irrelevant whether the owners of such properties are in possession of the title deeds at the time of attachment. The only time in most instances that owners of such properties have to react is when they are served with notices to vacate the properties, in which case it is already too late.

The only way to reverse such sale by the Sheriff is to approach the High Court, and only if there are valid grounds why such an order needs to be rescinded. Take note further that this is a costly exercise. My advice is that owners of land should react on service to them of documents reminding them of their failure to honour their debt repayments before a written note of execution can be issued. It is also important to check in the Deeds Office to see if there are no entries against your property.

Also take note that in all contracts which are signed, including bond documents the debtor chooses an address where service of legal documents relating to such a contract will be served – domicilium citandi et exucandi. If this address changes the owners should notify the creditor of such changes.

I hope this note will assist owners in avoiding foreclosure and resultant sales in execution by the Sheriff of the High Court without the owner’s knowledge.

Audrey Gwangwa

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