If a person or business owes you money, there are emotions involved and you may feel angry or frustrated especially if you see the person or business flourish or the person living in a house that gives the impression that there is no financial struggles.

In these circumstances we receive al lot of instructions or request to immediately proceed and sell the property for clients.

The attachment of immovable property or then for instance a house to be effected requires that the attorney ensure that the application that has to be done will be sufficient to answer to all regulations as required by law.

In this instance we do not only take a look at the Magistrate’s Court act which regulates the process and requirements but also Section 26 of the Constitution regarding the debtor’s right of access to adequate housing.

The court can find that it would be unjustifiable to order execution of the immovable property, as the advantage to the creditor would outweigh by far the prejudice and hardship caused to the debtor especially in circumstances where the amount owed is far less than the value of the residence of the debtor.

An application in terms of Section 66 to request an order to attach the immovable property should be done by the attorney and the order given if good cause is shown for such order to be granted.

Always ensure if there is currently a bond registered over the property and also very important to take into consideration to determine the possible success to collect money even if the property is sold on auction by completing all the correct steps, is the Municipality account and if it is a Sectional Title property, the levies due and payable to the Body Corporate.

Proper notice should always be given to the bond holder of the property if applicable and should the bondholder confirm in writing that they are prepared to accept the proceeds of the sale which will be preferent to most claims, whichever amount is accumulated from sale.

I will shortly list some of the steps to be taken to arrange such a sale BUT always ensure that all the risks and costs were taken into consideration before your instructions are just to sell that house!

Steps summary:

1. The notice of sale must be drawn up which should include a proper description of the property;
2. Conditions of sale must be drawn up and handed to the sheriff at least 20 days before the sale.These conditions must be served on all parties concerned;
3. The sheriff requires unlimited security and a conveyancer’s certificate with a proper description of the property and of all bonds and interdicts registered against the property;
4. The sale must be advertised in a local newspaper and in the Government Gazette;
5. The sheriff should be provided with a detailed statement of account before the sale.