About Green Debt | Sequestration of Property
Sequestration of property is the act of removing, separating, or seizing anything from the possession of its owner under process of law for the benefit of creditors or the state.
Sequestration of property is almost as old as mankind itself. In Ancient Rome the over-indebted would be removed from the commercial environment by sequestrating him and protecting creditors from incurring further losses. The debtor’s assets were divided amongst creditors. During this time insolvency was deemed to be a criminal offense.
In modern time the main aim of sequestration of property is to prevent creditors from incurring further damages.
Information on the surrendering of your estate (with a property)
SEQUESTRATION / THE SURRENDERING OF YOUR ESTATE is a process whereby all your debts are written off, this will allow you to adjust your lifestyle to be in line with your total available budget.
This means you will be able to regain normality in your life and finances, without having to worry about creditors phoning you night and day, and legal actions taken against you, leading to unwanted house calls.
- YOU WON’T HAVE TO APPEAR IN COURT
- WE WILL NEGOTIATE ON YOUR BEHALF
- WE CAN HELP YOU TO BECOME DEBT FREE THROUGH SEQUESTRATION OF PROPERTY
Herewith a short summary of the Sequestration Process
- An advert is published in the Government Gazette and a newspaper that is circulated in your area. This avert stops any legal procedures against you i.e. execution notices, seizure on your movable and/or immovable property, etc.
- An ability statement is drafted that you will have to sign before a Commissioner of Oaths. This document is submitted for inspection at the Master of the High Court for 14 days or with the local Magistrate in the area which you reside.
- Thereafter a registered letter is forwarded to all your creditors as notice of the surrendering of your estate. Your creditors thus contact the attorney of record for information. You will also be provided with the same notice to enable you to forward it through to nagging creditors.
- The South African Revenue Services are also notified, even if you are not registered with SARS.
- At the day of the Court proceedings an Advocate will represent you on your behalf, you will not attend the hearing yourself.
- After the application has been approved and granted by the Court, a curator is appointed to handle all financial matters on your behalf. The curator will contact you to arrange a consultation to explain the details to you.
IMMOVABLE PROPERTY (should you have a BOND)
- In the instance that your property has already been scheduled for auction, is it very important to proceed with the application for sequestration soonest. As soon as the notice is published, all legal action will cease.
- A valuation will be done on the property. Documentation will be forwarded to you to complete before the valuation will commence. NB!! All improvements and fixtures must be stated.
- The curator appointed by the Master of the High Court normally attempt to sell the property off-hand i.e., an agent is appointed to try to sell the property. The agents will contact you to make an appointment to market the property. The agents used by the curator are very professional and will be take your needs into consideration.
- You may still be able to occupy the property until the curator is appointed after your sequestration. As soon as the curator has been appointed, they will convert with you in terms of the procedure herein. You must keep paying municipality bills to avoid a “blackout”. A copy of the last municipal rates and taxes must be brought with you to lodge the application.
- The curator will give you thirty (30) days to vacate the property, this may be before or after date of a successful sale.
- Should the property be sold for less than the bond amount, you will not be held responsible for the difference. E.G. if the bond was R1million and the property is sold for R800 000.00 the difference will be written off. Remember you are declared insolvent and will not be liable for the losses.
- Another aspect is that you will not have to deal with the purchasers. All aspects such as bond approval, credit worthiness etc. is handled by the curator.
- The approach of Movables must be read with this document as movables form part of your estate.
IT IS IMPORTANT TO KNOW THAT SHOULD YOU HAVE A PROPERTY, MOVABLE OR IMMOVALBE, YOU WILL NOT BE ABLE TO “NOT DISCLOSE” OR DEAL WITH IT IN THE SEQUESTRATION. THE MOVABLE AND/OR IMMOVABLE PROPERTY IS AN ASSET AND SHOULD BE DEALT WITH ACCORDINGLY. There are misleading advertisements in the newspapers stating that you will be able to keep your property, but shortly after sequestration date clients have a rude awakening and must vacate the property.
WHAT HAPPENS TO YOUR VEHICLE?
- If your vehicle is under hire purchase, the Rules of Court stipulate that any bank may repossess the vehicle. Court Rules determine that hire purchase falls within the Law of Insolvency and the vehicle’s payments must be made timorous and should be up to date. Should the instalments on the vehicle be up to date, financial institutions may be willing to consider your request to keep the vehicle more indulgently and may result in you being able to keep the vehicle. Please keep in mind that there is no guarantee for you to keep the vehicle.
- Vehicles registered in another person, or legal persons, name will not form part of your personal estate.
The difference between Administration and the surrender of your Estate:
Application is brought in the High Court of South Africa.
The application can be enrolled within five weeks.
Application is made in the Magistrate Court.
Application is enrolled within two months.
Court rules entail that all creditors are included and
that the court order must be accepted by all creditors.
“Cash loans” agreements are excluded from an administration
and you have to still pay the monies outstanding.
No maximum debt for application to be lodged.
The maximum debt for administration is R50 000.00
Should you owe for example an amount of R50,000.00,
you only pay back R18,000.00 – it does not accrue interest.
Should you owe for example R50,000.00 it still accrues interest
and costs, in other words you will pay back approximately R132,000.00
No further debt can be made.
No further debt can be made.
You pay the money direct to the curator.
Your employer must give permission that the repayment
amount is deducted straight from your salary.
Should you have a immovable asset (house), it will be sold
by the curator to pay the creditors.
Should you have immovable assets, you must still pay
the premium sand can keep the property.