“There have, of late, been salutary moves in the statutes, case law, rules and practice directives to introduce a measure of flexibility into the execution process where it is sought to execute against the home of a debtor. These laws and rules emanate from an excepted need to promote the objects of our Bill of Rights and especially the requirement that all relevant circumstances be considered before depriving a person of his or her home. They include the requirement that immovable property not be executed against without judicial oversight being brought to bear thereon and the recent introduction of Rule 46A into the Uniform Rules which requires that the court consider alternative means of satisfying the judgment debt, other than execution against the judgment debt as primary residence.”
Considering all of the abovementioned, it seems that the principle of judicial oversight by the court and as such the consideration afforded to a debtor’s primary residence during foreclosure proceedings simply relate to a judgment debtor himself and the possibility that such a judgment debtor could retain the property after having considered opportunities to maintain a mortgage loan, rehabilitation of the debt or any other means possible. Considerations such as rehabilitation of a debt for obvious reasons fall by the wayside when a judgment debtor passes away. The considerations will only be practical if the judgment debtor is still alive.
Thus, even in our current dispensation, which places a high value on the promotion of the objects of the Bill of Rights, an executor will most likely not be in a position to rely on the issue of a “primary residence” as a consideration to be taken into account by the court when foreclosure proceedings are instituted by a credit provider against the deceased estate. If that is indeed the position the deceased’s family or relatives occupying the erstwhile primary residence will not be given any thought during judicial oversight by the court in foreclosure proceedings against the estate. To date the courts have not yet pronounced on the aforesaid issue and a decision is eagerly awaited. In the meantime, the position regarding the abovesaid continues to remain uncertain.
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