Views expressed are my own and do not necessarily represent a legal opinion
It is time to tell my story….
It is a tale of home and hope, interrupted. A dream turned into a nightmare of injustice… But it will always remain a tale of hope, because this is the part that I control, and I refuse to give that up…
The identities of the characters can and will be revealed if / when the story is heard in the High Court, a premiere which seems imminent. So for now, I will use non-fictional role names. I am (unfortunately) one of the main characters, but I maintain that this is not a victim role. I’m still working on how exactly to cast this role…
The other main character is our “Seller”: the person who, 5 months ago, sold me a property – a new home. (She has now changed her mind.) She (yes, she) is a psychologist.
Then we have the “Transferring Attorney” (I use this title lightly and with my tongue deservedly in my cheek), who was appointed by our seller. I believe that he has no fear of the law which he “practices”.
I think that a cameo role is played by the seller’s “Husband”, an architect who also seems to be a self-appointed electrician, legal advisor(?), and possibly many more things in collaboration with above “transferring attorney”, which perhaps an investigative journalist can uncover (hint hint).
So, let’s dive in, as short and sweetly as (im)possible…
In January, I made an offer to purchase a home for myself and my family. The past couple of years have had its challenges, to say the least, and this home was to represent hope and light. I just came out of a divorce (very amicable, but never easy), and was hopeful for a new chapter and an opportunity to guide our children as best possible through this pivotal time in their lives and emotional development. A professional sale agreement, provided by the estate agent involved, was co-signed by myself and the Seller. I paid the deposit, and we started building our dreams!
Soon after though, our Seller received a higher offer and exercised her contractual right to force me to meet my suspensive conditions (i.e. an approved mortgage bond) within three days, failing which, the contract would be cancelled. I delivered. However, her attorney (who later turned out to be said “transferring attorney”) then refused to accept my attorney’s undertaking to pay the balance of the purchase price from the proceeds from the sale of my other property which was on prep at the deeds office (i.e. funds would be released within 7 days). He proceeded to place me in “breach” of contract. I then took out expensive bridging finance in order to deliver the guarantee they demanded. I was gobsmacked and angered by this unnecessary move, but thought that I could now finally relax. Not so! With less than 24 hours’ notice, the attorney announced that he and/or the seller is not accepting my approved mortgage bond, “because it is not cash”, and because I had waived my rights to suspensive conditions… Suddenly, I had no rights.
My kids were already designing their new rooms; my deposit was paid and I was floored. With less than 24 hours to “remedy” or lose my home and probably my deposit, I had little choice but to agree to a substantially increased purchase price. I felt violated but I accepted that I signed a contract containing a clause that may have allowed for this shocking turn of events. I still believed that – albeit at an absolute premium price and under stressful circumstances – our new home was now secured, and purchased in accordance with the deed of sale and the rights and responsibilities it affords both myself and the Seller.
Fast forward to my taking occupation on 1 April (on a premium occupational rental, as transfer was only scheduled for 15 May)… A substantial amount of fittings and fixtures had been removed: beautiful chandeliers, light pendants, wall shelves and even the characteristic Victorian wall mount on the front exterior of the house – most were gone, while some were replaced with cheap alternatives… Most of the state-of-the-art appliances that were included in the sale were defunct; the pool level dropped by about a meter within 5 days of occupation; the first winter rains had me shopping for buckets to catch the water streaming through the sieve that is the roof, plus the gutter was transformed into a multi-purpose, multi-directional water feature. The wooden floor is sinking and damaged in areas that were covered by furniture and carpets upon viewing, there is significant damp in the wall, and the list goes on. Significantly, no as-built plans are available for the property, and it turns out that the beautiful backyard deck that enchanted me into buying the house, is illegal.
The seller did not disclose any of these little niggles to me, despite her contractual duty to disclose all known patent and latent defects and to specify any fixtures and fittings that were to be excluded from the sale. Her argument is that the house was tenanted, and that she “simply didn’t know about the defects”. I believe that I have sufficient proof that she (and her architect husband) was fully aware of everything and probably more. Furthermore, she failed to arrange electrical, plumbing and gas compliance inspections before I took occupation despite the contractual requirement to hand over a complaint property, and I soon discovered that there were multiple dangerous irregularities wrt the electrical installation, so much so that my daughter had to vacate her room, which was not under earth leakage. I believe this fact was known to the seller’s husband, who – instead of a qualified electrician – was sent to “assess” the situation with a hairdryer, and pronounced it “safe”.
Achieving compliance turned out to be a never-ending process of me having to facilitate contractors doing invasive work to fix the electrics and plumbing. When it was revealed that certain non-compliant items remained (which the seller had been aware of), it was the compliance company that had to take responsibility.
Having accepted each letter of the contract myself (at a great cost), I expected the same courtesy from the Seller. I tried to remain objective and understanding despite the challenging circumstances, but goodwill has its limits and I thought my legal rights in terms of the many irregularities were clear as daylight. I still think so. But…
Enters the “transferring attorney”, who was of course appointed by the seller, but whom I still believed would act in accordance with his lawful duty to me as purchaser. He is after all an officer of the court and bound to act in an ethical manner towards both parties. He told me that he would aim to facilitate a fair outcome, and suggested the option of keeping funds in Trust upon transfer, to cover costs for repairs of the defects that represent valid claims. He asked me to send him a report together with evidence of the seller’s knowledge of these defects, as well as a budget for repairs and replacements. It took me days to put this together thoroughly and meticulously, in order to share it with him timeously and to avoid delays in transfer.
His response was interesting. Although he requested more evidence, the tone of his letter was worrying – I sensed that he was responding as a defence attorney, rather than the appointed conveyancer. After I responded to each and every query and statement in his letter and presented even more conclusive evidence, he started ignoring my correspondence. Calls to his office were unproductive. Two weeks later, he placed me in what I believe to be a manufactured “breach” of contract, accusing me of trying to delay the transfer. Of course, the only party in breach is the seller (on numerous accounts).
I seem to be becoming good at this. I just wish we could take out the “r”. They really should be sending me BEACH letters. I’d say a voucher for a one year holiday in Tahiti would be in order….
Oddly, a few days after this “breach letter”, I received a notification that the transfer had been lodged, despite all the unaddressed disputes, the fact that certain compliance certificates were still outstanding, and the fact that his firm had not made arrangements for me to sign the correct transferring documents!?!?
I had now appointed a litigation attorney ($$$$$$). Despite his legal gold correspondence which would prove that there has been no breach on my part (but rather multiple breaches on the part of the seller), and legally supported demands to effect the transfer (which was now sitting at the deeds office, without my signature) and to honour my rights which are crystal clear in terms of the deed of sale as well as general contract and property law, the “transferring attorney” now announces that the sale is cancelled. In his words: “There is no more agreement, the agreement is gone”. I have reason to believe that he and/or the seller want me to give up my rights and sign a new agreement. He fails to register the transfer and proceeds to threaten to evict me.
Yes, they say they will evict me. From a property of which I am the legal purchaser, having met all suspensive conditions in the deed of sale. A property that was going to be a home and a symbol of hope. They (Seller? Transferring attorney? Husband?) are prepared to take away something as fundamental and symbolic as a home, from a single mother and her three children. Why?? Because I ask questions. Because I expect my rights to be honoured. Because I will not accept injustice.
WHO AND WHY?
The seller is a high-nett worth individual. She seems unwilling to take responsibility for her non-disclosures and her inability / disinclination to honour a legal agreement which she signed. She is also a practicing psychologist, who presumably understands cause and effect of stressful life events, and is trusted by patients to be sympathetic and kind. This same therapist, I believe, instructed her attorney to take away our home and threaten us with eviction. Read that again.
I am not exactly a high-nett worth individual. All my “nett” has been invested into this home. The esteemed transferring attorney is in possession of a large portion of this, and it also seems he / they plan to keep this money over and above their attempt to take the property back. I am a musician-creative-swimmer-and-entrepreneur. I have to work constantly and creatively to meet my responsibilities. I have not been able to focus much on my work (or on anything else, really) but I know I have to find a way, in order to afford the legal mountain that lies ahead.
The “transferring attorney”? Turns out he is well known in legal circles to be an extreme “bulldog”. But why risk his and his client’s reputation in this case, where the High Court is likely to call them both out, provided I can afford to go there? My guess is that he is counting on his client’s financial superiority to out-play and out-pay me. Or perhaps they believe that their intimidation will make me give up my rights – in the same way his firm’s alleged fear mongering tactics force debtors into surrender? (Online reviews tell all).
I believe that there is a history between the seller’s husband and the attorney – probably big business. Maybe they are mates? Maybe this is just a game they all like to play together? Maybe they don’t realise they are playing with the wellbeing of other humans – three of them being children who just need their mum to be present and to show them that life can be OK… And the other one (said “mum”) being robbed of the time and space to be present, and unsure how to make things remotely OK until this nightmare goes away.
I do not wish this experience on the children of the Seller, the Transferring Attorney, or anyone else…
Nightmares do not offer us the courtesy of choice. They continue to rule until we wake up, and then they can return and/or linger for some time after. Dreams are different though. We can choose to dream – call it daydreaming, or call it clinging on to hope. Nightmares can be negotiated by dreams.
It can take unimaginable resilience and discipline to keep the dream alive. When I ask “Why Me”, I try to remind myself that I have in the past been able to access a place of great strength within myself, even when it felt impossible. Perhaps, on a karmic level, I somehow chose this chaos, to force me to further deepen my strength and show our children never to give up, to always reason with fear instead of allowing it to dictate your response, and that YOU SHOULD ALWAYS STAND UP TO INJUSTICE.
I hope that in future perhaps I can help others who face a similar injustice but may not realise that they have the means to stand up to it. For now, I’ll decide to cast my role as “dreamer”, and I will continue to face whatever clownery the other characters throw my way.
TO BE CONTINUED
I will continue to express my opinions and tell my story on this platform. Until, hopefully, justice is served.