For some time there has been uncertainty regarding the question of whether or not all disputes in community schemes (sectional title schemes and homeowners association schemes) which cannot be resolved internally, had to first be referred to the Community Schemes...
Sloan Wilson
Who appoints the Conveyancer?
When a property is sold who has the right to appoint the Attorney to attend to the transfer? Firstly, it is important to be aware that not all Attorneys are Conveyancers. Only qualified Conveyancers may prepare Deeds of Transfer and Mortgage Bonds and register these...
How long should a Transfer Take
How long should it take a conveyancer to effect registration of a “typical transfer” of a residential property? South Africa, in fact, has one of the most complex (and best) systems of land registration in the world. Conveyancers must be qualified attorneys and write...
Cost of Transfer
The costs of transferring ownership in immovable property are borne by the purchaser. If the purchaser is obtaining a loan from a bank to purchase the property, then two registrations take place in the Deeds Office, namely the registration of transfer of the property...
Voetstoots 1
Almost every Agreement of Sale/Offer to Purchase relating to the sale of immovable property contains a clause stating that the property is sold “voetstoots” (as is/as it stands). What is the effect of such a clause? Under the common law the Seller is responsible for...
Short Term Letting in Community Schemes
Short-term letting – often referred to as “Airbnb” – is one of the most controversial issues encountered in Community Schemes, both Home Owners Associations Schemes (HOA) and Sectional Title Schemes. Airbnb’s give rise to many complaints from owners in schemes...
Roads in Private Gated Estates
A number of articles have been published recently about the powers of governing bodies (such as Home Owners Associations) in private gated estates to create and enforce ‘road rules’ within the estate. The interest in this topic resulted to a large extent from a court...
Voetstoots 2
There are numerous High Court cases relating to disputes arising from the “voetstoots” sale of immovable property. In one such case the facts were briefly as follows: The sellers sold a house to the buyers “voetstoots”. After taking transfer the buyers wanted to do...
Should you Register Your Property in the name of a Legal Entity
One of the disadvantages of registering your home in the name of a legal entity is that you (or more accurately the legal entity in whose name your home is registered) will not be entitled to the Capital Gains Tax exemption which applies in respect of primary...
Options and Rights of First Refusal
The terms "option" and "right of pre-emption" (more commonly known as a "right of first refusal"), are often confused by persons involved in property transactions. There is a significant difference between granting or receiving an option to buy or sell property and...
Witnessing of Contracts
Is it a legal requirement that the seller’s and purchaser’s signatures on an Agreement of Sale of property be witnessed? In practice, most Agreements of Sale used by estate agents (property practitioners) contain blank spaces for witnesses’ signatures. It is however...
Registering Property in the name of a Trust
It has become a fairly popular practice (especially amongst affluent people) to register property in the name of a legal entity such as a close corporation, company or trust rather than in their personal names. A trust is a popular choice, particularly where...
Breach of Contract
What remedies does a party to a deed of sale have if the other party fails to fulfil his or her contractual obligations? The first step to be taken under such circumstances is to consider the wording of the clause in the deed of sale relating to the breach of the...
Duty to Disclose
An issue which often causes disputes between sellers and buyers is that of non-disclosure of material facts relating to the sale. Attorneys are often approached for advice by buyers who have discovered some fact after the sale which they claim would have influenced...
Legal Implications of Contracts
When disputes arise between sellers and purchasers of immovable property regarding the terms and conditions contained in the Agreement of Sale, one (or both) of the parties often claim that they didn’t understand the legal implications and consequences of the contract...
Suspensive Conditions
Most sales of immovable property are concluded subject to one or more suspensive conditions. One of the legal definitions of a suspensive condition is that it is a condition which suspends the operation or effect of one or more of the obligations under a contract...
More on Suspensive Conditions
In simple terms, a suspensive condition in a sale agreement is a condition that makes the sale dependent upon the occurrence of some future event. The two most common suspensive conditions which are encountered in contracts relating to the sale of land are the...
Deeds of Sale Part 1
In my experience as a conveyancer it has become apparent to me that many buyers and sellers of immovable property do not fully understand the legal implications and consequences of the contract which they sign when buying or selling property. This is understandable as...
Deeds of Sale Part 2
I mentioned in my previous column that I would attempt to explain in simple terms, the legal meaning and consequences of the most important conditions contained in a deed of sale (contract) relating to the sale of property. Before doing so however, it is necessary to...
Registering Property in the Name of a Minor
We are quite often asked for advice on the advisability of registering property in the name of minors (unmarried persons under the age of 18). Parents sometimes wish to invest in property and register the property in their minor child’s name. There can be any number...
Title to Property
The two most common types of title to immovable property are Sectional Title and Freehold Title. A freestanding house erected on a single erf in a residential suburb is normally held by freehold title whereas most flats, apartments and units in townhouse complexes are...
Neighbour Relations Part 1
This is the first article in a two-part series on neighbour relations. It is an unfortunate fact of life that some people have little or no regard for the rights of others. This disregard has, over the years, led to the development of a sphere of law sometimes known...
Neighbour Relations Part 2
As mentioned in Part 1, owners are entitled to use their land as they please provided that they do not infringe on their neighbour’s corresponding right to enjoy and use their own properties. “Neighbour law” accordingly places certain restrictions on the way in which...
Fixtures and Fittings
A buyer who purchases immovable property legally acquires the land together with all permanent improvements on the land. Permanent improvements include not only the physical structure but also items, which are permanently attached to the structure. These items are...
Extensions to a Section in Sectional Title Schemes
The owner of a freehold property who wishes to do alterations or extensions to the buildings on his property, need not (as a general rule) obtain the consent of his neighbours. Such an owner simply has to submit building plans to the Municipality for approval. Once...
Remember the basics when signing the Deed of Sale
Yonda Investments CC v Rohr and Another (29235/2009) [2012] ZAGPPHC (25 June 2012) This recent judgment is one of many cases in which a Deed of Sale is declared void for non-compliance with the law and illustrates how important it is for parties to remember the basic...
Renegotiating an offer that has lapsed
Matthysen v Stoney Ruver Properties 53 CC (2011 JDR 1866 (GNP)) (22 December 2011) This recent Court case illustrates the inherent risks associated with parties renegotiating an offer that has lapsed. On 1 September 2010 the purchaser purchased a commercial property...
Bond Clauses
Murphy and another v Durie 2006 JOL 18301 (C) [7 September 2006] When has a loan been "obtained" by a Purchaser? Does the word "obtained" mean the same as "granted"? Does the word "granted" mean the same as "granted in principle"? Most sales of residential properties...
Beware of poorly worded “Bond Clauses”
Park 2000 Development (Pty) Ltd v Page (905/2010) [2011] ZASCA 208 (29 November 2011) This recent court case dealt with the "bond clause" and suspensive conditions in a deed of sale relating to the sale of land. In this case the deed of sale contained a suspensive...
Buyers at Auctions Beware!
Rademeyer v Viljoen and Another (69/11) [2011] ZASCA 189 (3 November 2011) This recent court case highlighted one of the potential risks of purchasing property at an auction. The buyer bought three farms (which were owned by a trust) at an auction. One of the...
LATENT DEFECTS AND THE VOETSTOOTS CLAUSE
Banda and Another v Van der Spuy and Another (08/5489) [2011]. ZAGPJHC 126 (23 September 2011) Latent defects and the voetstoots clause were again under the spotlight in this recent court case. The facts of this case were as follows: the purchaser purchased a house...
PROMISES IN SALES BROCHURES: DEVELOPERS AND AGENTS BEWARE
Guthrie and Another v Etango Game Lodge (Pty) Ltd and Another (66601/2010) [2011] ZAGPPHC 214 (9 December 2011) In this recent court case a developer (seller) was ordered to deliver on promises in sales brochures given to purchasers. The purchasers purchased (off...
A PROPERTY OWNER’S RIGHT TO A VIEW
I was recently consulted by clients for advice on whether or not they could prevent their neighbours from erecting a structure which would obstruct their views of the sea. The question of whether or not a property owner enjoys a "right to a view" was given...
Sectional Title Levies
A recent court case (Fisher vs Body Corporate Misty Bay) involved a set of facts which will be of interest to sectional title owners, trustees of body corporates and managing agents. Fisher, the owner of a sectional title unit in the Misty Bay Village complex fell...
Property maintenance prior to transfer. Who is liable?
A recent court case dealt with the above question and provides food for thought. Quite often a purchaser of immovable property takes occupation of the property prior to transfer and in return pays "occupational rental" to the seller until transfer is effected. Most...
Deregistration of Close Corporations
Although not strictly property law related, a recent court case draws attention to one of the consequences of the deregistration of a Close Corporation. In 2010 more than 764 000 Companies and Close Corporations (Corporations) that failed to meet the requirement for...
Non-Variation Clauses
Many deeds of sale and lease agreements contain clauses which are commonly referred to as "non-variation clauses". The exact wording of these clauses varies from one agreement to another but most are substantially the same. In essence these clauses provide that the...
The Consumer Protection Act
The Consumer Protection Act (CPA / the Act) is one of the most important pieces of legislation to be introduced in South Africa for some time. As its name implies the main purpose of the Act is to protect consumers (particularly against exploitation and unfair...
Group Housing Developments
The security and lock-up and go lifestyle afforded by some freehold group housing developments has resulted in these developments becoming increasingly popular in South Africa. These developments offer a number of advantages including, convenience, relatively low...
The Sale of Residential Property
When residential land, or an interest therein is sold or transferred, either VAT or transfer duty is payable on the transaction. The issue of what “tax” is payable when a “property transaction” takes place, has become quite a complicated matter. I am restricting this...
Improvements to Common Property in Sectional Title Schemes
Owners in sectional title schemes sometimes enquire whether they can compel the body corporate to install security features and measures such as intercom access control systems, remote control motor gates, electric/security fencing, and also whether the body corporate...
Disputes about Levies/Withholding Payment of Levies
[NOTE: This Article deals with the withholding of levies by owners as a result of disputes that have arisen between the owner and the body corporate/trustees in a sectional title scheme pertaining to the management of the scheme, an increase in levies, or the...
Maintenance of Sectional Title Schemes
Questions often arise regarding who is responsible for the maintenance and repair of sections, exclusive use areas (EUA’s) and the common property in sectional title schemes. To understand this issue, one first needs to understand the terms “section”, “EUA” and...
Exclusive Use Area
Most people who own property in sectional title schemes are familiar with the term “exclusive use area” (EUA). However, a fair amount of confusion seems to exist regarding the exact nature of EUA’S. This is not surprising as there are different ways in which EUA’S...
Sectional Title Levies
Last week I dealt with some of the differences between Sectional Title and Freehold Title. This week we take a look at the issue of levies which are payable in respect of sectional title property. As I mentioned previously, the financial affairs of a sectional title...