Have you ever agreed to safekeep a friend's goods (like a laptop or furniture) at your place for a while and a few days turn into what feels like an eternity without them collecting it back? The goods take up space in your home and is also quite unsightly. The friend keeps promising to collect it but just does not show up on the day. You are now starting to think that you can just sell it to make an extra bit of money. This article discusses your rights in such situations and clarifies whether you can simply sell or pawn the goods to compensate yourself for the storage and reclaim your space.
Do you become the legal owner of the goods?
There are essentially two categories of real rights that a person can have over goods, a full or limited real right. When referring to a “real right”, it is simply the right that one has against others in relation to things. Of all the real rights, ownership is a full real right that gives the most comprehensive control over a thing. The ownership right consists of different elements over the thing, which include possession, use, enjoyment and disposing of it as they please.
The elements making up ownership are divisible and it is possible for an owner to transfer parts of the right to another person. A common example of this is the rental of a house. Whilst the tenant has possession and the right to use and enjoy the house, that does not automatically give them the right to dispose of the house as if they were the owner.
In the same way, being in possession of your friend's goods does not automatically transfer ownership to you. In fact, if the friend only requested that you keep their goods and says nothing about you being allowed to use and enjoy what they left with you, then exercising those elements may even lead to a claim for damages against you.
Can you sell or pawn the goods?
As indicated earlier, the right to dispose of a thing through whatever means, including selling or pawning, belongs to the owner. Since possession does not make you an owner, you cannot simply sell or pawn your friend's goods even if they are in your house.
However, the law provides certain remedies that you can follow to establish a legal basis to sell the goods. The legal basis may be in the form of obtaining permission to sell or pawn from the owner or obtaining a court order to sell. Where consent is obtained from the owner, this should ideally be in writing to reduce the risk of disputes. The court order does not give one permission to pawn goods, but rather allows for a sale to be facilitated as explained below.
If consent cannot be obtained from the owner, then you initiate the legal proceedings to obtain a court order by first sending a formal written demand to the owner wherein you state that:
> the agreed period for you to hold the goods has expired, (if there was no agreed time, then you provide a final date by which they should collect the goods);
> they need to collect the goods on a specified date; and
> failure to collect on the date indicated shall result in you charging storage fees (details such as the storage amount and the billing frequency like weekly, monthly or daily, must also be included).
In the event that the owner still does not collect the goods, you may approach the court for an order for the accumulated storage costs. This will entail issuance of summons and following through with the civil procedure steps. Once you have the court order, you may approach the Sheriff of the court for attachment of the goods to be sold to cover the unpaid storage cost.
It is very important to note that if you are selling the goods on the basis of a court order, it is the Sheriff who facilitates the sale, not you.
What if you don't follow the legal process?
Firstly, if you are selling the goods through a pawn shop or second-hand dealer, then the Second-Hand Goods Act 6 of 2009 applies. According to this Act, the dealer or pawn shop must be reasonably convinced that you are the owner of the goods you are selling. If you provide false information or they suspect that you stole the goods, then they are under an obligation to report this to the police. This means that you may open yourself up to criminal prosecution.
Furthermore, the owner of the goods you sold/pawned without following the proper process may institute civil proceedings against you for damages equal to the value of those goods. This can put you at a loss since the amount you sold it for might be less than their actual value.
Conclusion
As can be seen from above, getting rid of goods you agreed to hold for another person is not as easy as selling or pawning them. If they neglect to collect their property, the process to remove it from your space can become lengthy. In the circumstances, one should be cautious and keep in mind the possible events that may follow from such an arrangement before agreeing.
Did you know… You cannot simply sell or pawn another's property if left in your house for a long period of time.