It may not be feasible or desirable to proceed with a back to back transfer, for example where the original seller did not qualify for a subsidy or the subsidy was declined and the first leg of a back-to-back is not possible.

In this case, it is possible for the housing authority to transfer directly to the new owner. There are two scenarios:

• The self-classified owner can apply and qualify for a housing subsidy in her or her own right

• The self-classified owner does not qualify for a subsidy, and a regularisation process is required

The occupant of the house claims to be have bought the house from the original beneficiary (i.e. there is evidence of an informal sale).

Where the beneficiary is alive and supports the fact of sale, there are three possible pathways to transfer:

1. Back to Back Transfer

2. Self-classified owner to apply for a subsidy in his / her own right in own right and action

3. Regularising non-beneficiaries

Dealing with non-qualifiers

Where the self-classified owner qualifies for a subsidy, a process is required. During this process, the housing authority will sell the property to the self-classified owner occupant for a nominal amount of R15 000. This process is described in more detail in the regularisation overview in this toolkit.

Where the original beneficiary confirms that the property was sold and ownership is not contested, the housing authority can transfer the property to the purchaser. In some cases, this owner may qualify as a beneficiary in his / her own right. In such cases, the new owner must apply for a subsidy, and be added to the project as a beneficiary. In practice this may require the housing authority or the province to add an additional phase to the project to accommodate additional beneficiaries.

The subsidy records pertaining to the original beneficiary must be retained as that individual has, in fact, benefitted from a subsidy.

Once the subsidy has been approved for the new owner, the property can be transferred in line with the core registration process

Where the subsidy is not approved, the regularisation process must be followed.

• Self-classified owner does not qualify for a subsidy and regularisation is required

for more detail.

Process Overview

In this case, the housing authority transfers the property to the original beneficiary, who then immediately transfers the property to the new owner. The original beneficiary would sign two sales agreements, the first as a buyer with the housing authority as the seller, and the second as the seller with the occupant as the buyer.

In order to enable the second transfer (from the beneficiary to the current occupant), the beneficiary needs to obtain a waiver or 'no objection' letter from the provincial human settlements department in line with Section 10A of the Housing Act. This letter states that the provincial department has no objection to the sale and must accompany the transfer documents.

In the case of delayed transfer, these no-objection letters should be requested by the housing authority and provided by the provincial authority as a matter of course; the occupant lives in the property and there is no dispute about ownership. As per the Guiding Principles (Principle 1: Avoid evictions and Principle 4: The household's perspective matters), the housing authority and the provincial authority should enable the formalisation of existing informal ownership arrangements.

In practice the title deed for the primary registration is required before the subsequent transaction can be registered. When the primary registration is complete, the transferring attorneys should retain the title deed and not hand it back to the original beneficiary, but should rather deliver it to the conveyancer who is facilitating the second transfer.

The key steps in the back to back process are:

1. Occupant indicates that they purchased the property from the original beneficiary

2. Housing authority traces and contacts the beneficiary

3. Beneficiary confirms the sale of property

4. Housing authority requests a no objection letter from the provincial authority, which is duly granted and sent to the conveyancer dealing with the secondary transfer

5. The beneficiary signs a sale agreement with the housing authority

6. The beneficiary signs a sale agreement with the new owner / occupant

7. Conveyancer follows the core registration process for the first sale

8. Primary transfer is registered and title deed is returned to the conveyancer of the housing authority

9. Conveyancer of the housing authority sends the title deed to the conveyancer who is processing the secondary transfer

10. Conveyancer prepares transfer documents for the secondary transfer and lodges at the deeds registry following the usual registration process for the transfer of the second sale

Where the occupant indicated that he or she purchased the property informally from a beneficiary, it is important to validate that this transaction took place and that property ownership is not contested. The original beneficiary/ies must be contacted so that he or she can confirm the transaction took place and agree that he or she has no claim on the property.

There are four primary scenarios:

• Property purchased from a beneficiary who is alive and contactable: No dispute

• Property purchased from a beneficiary who alive and contactable: Disputed transaction

• Property purchased from a beneficiary who is alive but who cannot be traced

• Property purchased from a beneficiary who is deceased

Where the beneficiary has been traced and confirms the transaction took place, the transfer can proceed either:

• through a back to back transfer,

• with a subsidy where the current occupant qualifies; or

• through a regularisation process where the current occupant does not qualify.

In some cases, the beneficiary may dispute that the transaction took place. In these cases, the housing authority must try to mediate between the parties, assess available evidence and transfer on the basis of available evidence.

In some cases, the purchase may be a third or fourth generation transaction (the beneficiary sold to A who sold to B etc.). In these cases, the housing authority should make reasonable attempts to locate the beneficiary and confirm that the beneficiary has, in fact, sold the property and has no claim on it. The housing authority has no obligation to other sellers and would be within its rights to transfer to the current occupant on the basis of available evidence.

The housing authority must attempt to locate beneficiaries as described here.Locating missing beneficiaries

Where beneficiaries cannot be traced, the housing authority must proceed to transfer to the occupant and self-classified owner on the back of available evidence. This might require the self-classified owner to apply for a subsidy or follow the regularisation process.

Where the all beneficiaries are deceased, it is not necessary for the housing authority to try to locate heirs to validate that a transaction took place. The housing authority should examine the body of evidence pertaining to the transaction and where justified, transfer the property to the occupant and self-classified owner in line with this evidence. This might require the self-classified owner to apply for a or follow the .

If there is no evidence of a transaction, the housing authority may require the occupant to sign an affidavit warranting that he or she purchased the property. In addition, a suspensive clause could be added to the sale agreement that would nullify the sale if the occupants fraudulently claimed to have purchased the property.

Where the beneficiary disputes the occupant's claim on the property, this dispute needs to be adjudicated by the housing authority.

Step 1: Initial meeting

The housing authority calls affected parties to a hearing where each party is requested to present his / her case and bring relevant documentation or evidence.

Evidence might include:

• An informal sales agreement or affidavit signed by the buyer and seller

• Proof of payment

• Affidavits provided by neighbours

• Letters from a street committee confirming the sale

The authority should notify participants of the meeting in writing, noting that if invited parties do not attend or request a change in the date / time of the meeting, the housing authority can transfer the property in line with available evidence.

During the meeting, the authority should clearly explain that the purpose of the meeting is to gather information. The housing authority should outline the powers of the housing authority in the property transfer process and explain the requirements for transfer, notably that the housing authority must be satisfied that ownership is uncontested before transferring the property to any party.

In some cases, the disputing parties may reach agreement during this engagement. In this case, the housing authority should document the agreement and ask participants to sign the document.

Step 2: Adjudication

Where no agreement is reached, the disputing parties must appear before an adjudication panel comprised of officials from the housing authority and in some cases the provincial human settlements departments, depending on the level of accreditation in place. This panel will determine who the property should be transferred to.

Parties to the dispute have the right to appeal the outcome of the adjudication process, through an appeals panel to be established by the housing authority.

Step 3: Transfer in line with determination

The housing authority determines the rightful owner of the property and transfers accordingly. Where the new owner is not the occupant, it is not the housing authority's responsibility to evict the occupant. The registered property owner can approach the courts to enforce his or her rights once the property has been transferred.