Property360 - National Digital Magazine - 27 August 2021

PROPERTY

360

The Property Law Ed ition

HOW NEW P R O P E RT Y L AW S W I L L TRANSFORM T H E I N D U S T RY PA G E 3

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Buyers should be prepared for all aspects of the process, including being familiar with all role players and fees.

PICTURE: ROLAND MAIER/FREE IMAGES

Long and wind ing road

Many buyers are unaware of the various legal stages on the route to acquiring a home

BY BONNY FOURIE bronwyn.fourie@inl.co.za

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OST aspiring homeowners embark on the property buying journey with little idea of the route, the stops along the way, and the different role players necessary to help them proceed.

Conveyancing attorneys are among the crucial gatekeepers many buyers do not know much about, yet they are responsible for the legal transfer of property from one owner to another.

They prepare the deeds and documents to transfer the property as well as have the sale registered with the Deeds Office. And they, like other parties in the process, need to be paid.

In fact, just who needs to be paid – and by whom – is another thing many first-time buyers do not understand. But this is only one of many misunderstandings and misconceptions buyers have about the process, say attorneys.

Micaela dos Santos, senior associate at Adams & Adams Attorneys, says the source of many buyers’ misconceptions is the guidance and advice they receive from relatives and/or friends who have purchased property.

“However, as experience dictates, no two transactions are identical and each poses its own unique conditions and hurdles.”

Know, and choose, your conveyancers Dos Santos says many buyers mistakenly believe that the conveyancer represents the best interests of the seller but this is not the case.

“The conveyancer is there to execute the transaction in accordance with the sale agreement for the benefit of all the parties involved.”

Louis Kruger, director at Kruger

Attorneys & Conveyancers, says while sellers typically nominate the conveyancer who will attend to the transfer, this is customary and not law.

“The purchaser may nominate their own conveyancers as a term of the agreement.”

Simonne Nurse of CWN says while the seller usually gets to choose the conveyancer, parties should have open discussions as to which conveyancing firm would be best as the buyer pays the conveyancing fees.

She adds: “Conveyancing is a highly specialised field so choose wisely. Your estate agents don’t have the information that a conveyancer does.”

Transfer fees vs transfer duty – plus bond costs Nurse often finds that first-time purchasers do not realise that there are separate costs and conveyancers for the transfer of the property and the bond agreement. There are also misunderstandings around transfer duty and the varying amounts levied by Sars.

“Purchasers also don’t understand that, over and above the conveyancing costs, the banks levy an initiation fee which has to be paid by the purchasers.”

Echoing this, Kruger says many buyers do not realise that they have to pay both the conveyancing and the bond costs, and often budget only for one or the other, and not both.

“There are typically two different firms of attorneys involved in each transaction where mortgage finance is utilised. Bond costs are payable to the conveyancers nominated by the purchaser’s bank granting them the bond.”

He advises buyers to obtain quotes from the bond and transfer attorneys before completing an offer to purchase.

Dos Santos says purchasers often confuse transfer fees and transfer duty.

“Currently, transfer duty is payable on property acquisitions where the value of the property exceeds R1 million.”

It takes time for a transfer to be registered The fact that the transfer process can take longer than expected is another common buyer misconception, says David Campbell of Meumann White Attorneys. This is mainly due to that fact that purchasers, generally, are not aware of how many different role players are involved in the process of transferring a property.

Also, conveyancers require all the role players to “operate efficiently in order for a registration to proceed smoothly”.

“While, as conveyancers, we try to give an estimated date of transfer, it cannot be stressed enough that this is simply an estimate. We would try to stick to it as closely as possible but this is not always realistic given the other role players involved in the process.”

Echoing this, Maryna Botha, director of STBB, says it is important to remember that when an instruction reaches a conveyancer – to register transfer – that is the signal of the beginning of the process for the attorneys.

“But, by that time, it might be the end of a long process of property hunting and negotiation on the part of the buyer. For the buyer, by the time of signatures on the offer to purchase, the

process feels ‘done’, and they often cannot fathom why there is another six to eight weeks to wait before transfer.

“To them, it feels immediately that there is delay and incompetence because there is a further perceived waiting period.”

Snag lists Buyers also mistakenly believe that they are entitled to provide the sellers with a snag list of items to be repaired or renovated before they proceed with the purchase, says Kruger. However, while the process of purchasing a property from a developer may offer opportunities for a snag list, this is not applicable to the re-sale of residential properties by individuals.

Buyers have a duty to inspect the property before they complete an offer to purchase.

“Even though there is an onus on the seller to disclose any latent defects – those defects which cannot be seen in a reasonable inspection of the property – the seller is not obliged to disclose patent – obvious – defects. The purchasers must make a thorough inspection of the property to avoid any future pitfalls,” he says.

Independent attorneys Buyers can have an independent attorney look over the agreement on their behalf and advise them regarding the contents but many do not know this, Campbell says.

“Purchasing a property is a huge investment and so a certain amount of due diligence on the part of the purchaser is recommended.

“Inspect the property thoroughly and ensure that you understand the contents of the agreement before signing it.

“There is nothing wrong with having an independent attorney advise you prior to signing the agreement as, once you have signed, it is too late to make unilateral changes should an issue arise.”

Reasons for walking away from an agreement “For the man in the street, the principle of being bound to a contract, come what may, is difficult,” Botha says.

“They think that if their circumstances change, for example, they lose their job, it entitles them to walk away from a signed agreement. It does not.”

In addition, Meyer de Waal, director of MDW Inc, says buyers also incorrectly believe that a signed offer to purchase is not yet a legal and binding agreement and that a further sale agreement will be prepared for them to sign. This is not so.

Life insurance When it comes to securing a loan and ultimately registering a mortgage bond, Dos Santos says it a common misconception that a life insurance policy is compulsory. However, although it is true that the approval of a loan may be made subject to a life insurance policy being put into place, this is not a hard and fast rule.

“It remains within the lender’s discretion to impose such a requirement and this will be determined based on the client’s unique profile. However, it is indisputable that a life insurance policy is of great value and it is advisable for a prospective buyer to obtain a life insurance policy to settle the bond in the event of the purchaser’s death.”

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The Property Practitioners Act will have a huge impact on the property industry. PICTURE: SORA SHIMAZAKI/PEXELS

Letter from the editor FOR first-time home buyers, the whole process can seem a difficult one to navigate.

While some buyers are happy to leave it all in someone else’s hands, it’s also important to have some grasp of the legal processes involved in acquiring property.

Far too often we get emails from buyers who have had their fingers burnt by unscrupulous fly-by-night pretenders.

It is heartbreaking to see people, who’ve saved so hard, being led down a garden path with no home at the end of it.

Some buyers also do not know all the fees they have to pay, often making incorrect assumptions resulting in bad financial planning which costs them dearly. It is, as many have discovered, not as simple as, say, buying a car.

With this in mind, we hope this week’s in-depth look at the processes, plus the highlights of some important new property laws, will be helpful.

We are especially excited about the Property Practitioners Act, which will govern the majority of role players in the sector and go a long way to protecting the consumer.

It also seeks to regulate the property practitioner’s role, plus bring about muchneeded transformation in the sector through significant focus on the implementation of BBBEE standards throughout the industry, and seeks to establish a special fund that will support transformation.

In other words, this piece of legislation will help level the playing field for buyers, sellers and estate agents.

We believe transformation is vital for the sector and look forward to this coming to fruition. We also believe anything that can be put in place to offer the consumer more protection is necessary.

We look forward to seeing how the act will play out and hope the worthy intentions do become an easy reality.

Let us know your thoughts...

Warm regards

Vivian Warby vivian.warby@inl.co.za

FIND US HERE: @property360.co.za

@property360_za

@property360.co.za

Slew of new laws to affect property industry Experts say the Property Practitioners Act will have the most dramatic effect on agents and agencies

BY BONNY FOURIE bronwyn.fourie@inl.co.za

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HE PROPERTY Practitioners Act is set to change the industry “dramatically”.

Other laws attorneys say will affect it include the proposed Housing Consumer Protection Bill, the Land Court Bill and the Western Cape Government’s draft Inclusionary Housing Policy.

Once the Property Practitioners Act – which has been promulgated but is not yet gazetted – comes into effect, says Maryna Botha, director of STBB, it will have a fundamental effect on the industry because it repeals and replaces the whole of the Estate Agency Affairs Act, regulations and code of conduct.

“There is no singular further act that should have a bigger impact on this industry, except that the convergence of so many new laws, including the Protection of Personal Information Act (Popia), the Financial Intelligence Centre Act (Fica) and the Property Practitioners Act, substantially increases compliance responsibilities and makes running a business daily more demanding.”

Echoing Botha, David Campbell of Meumann White Attorneys says

the new act will have a “massive impact” on the industry. He summarises the major changes: • It will apply not only to estate agents and agencies, but to all property practitioners which includes providers of bridging finance, bond originators and conveyancers.

• The Estate Agency Affairs Board will be replaced by a board of authority, a body tasked with governing all property practitioners.

• No property practitioner will be entitled to any commission if they do not have a valid Fidelity Fund Certificate.

• Property practitioners will be entitled to receive commission from a property sale only upon registration of transfer and this cannot be contracted out of.

• All property sellers will be obliged to provide a snag list of any defects they are aware of in a property. If an agent sells a property without having obtained a snag list they can be held to be personally liable for the costs of rectifying any issues with the property.

Donald Mokgehle, senior associate at Adams & Adams

Attorneys, adds that a property practitioner is defined as any person who sells, by auction or otherwise, or markets, promotes or advertises any part, unit or section of, or rights or shares, including timeshare and fractional ownership, in a property or property development.

“The act creates the Property Practitioners Regulatory Authority (“the authority”) which will regulate the conduct of property practitioners when dealing with consumers.

“In line with the act’s objective to transform the property market in order to promote the expansion of property ownership among South Africans, the authority will also be responsible for providing adequate protection, education and information to consumers.”

The Housing Consumer Protection Bill is also noteworthy, says Louis Kruger, director at Kruger Attorneys & Conveyancers.

This bill, which was introduced to parliament in May, aims to replace the Housing Consumers Protection Measures Act, 1998, and to provide for: • The protection of housing consumers.

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• The continuance of the National Home Builders Registration Council as the National Home Building Regulatory Council.

• The registration of homebuilders.

• The enrolment of homes in order to be covered by the home warranty fund.

• The regulation of the conduct of homebuilders.

• The continuance of the home warranty fund.

• Claims against the fund.

• Funds of the council and for the management of those funds.

• Procurement and contractual matters in relation to the building of a home.

Meyer de Waal, director of MDW Inc, says one act that will bring “good-news changes”, is the Land Court Bill which was recently introduced to parliament.

THIS BILL AIMS TO: • Provide for the establishment of a Land Court and a Land Court of Appeal.

• Make provision for the administration and judicial functions of the Land Court and a Land Court of Appeal.

• Make provision for budgetary matters.

• Provide for the exclusive jurisdiction of the Land Court and Land Court of Appeal for certain matters.

• Provide for mediation and arbitration procedures.

• Amend certain laws relating to the adjudication of land matters by other courts.

De Waal adds that the “big talk of the town”, for those in the Western Cape, is the provincial government’s proposed Inclusionary Housing Policy.

“It requires the government, in its spatial plans, to address historical and spatial imbalances. It also specifically requires a municipality to designate areas where a national or provincial inclusionary housing policy may apply, in its municipal spatial development framework.”

The document states: “Our settlements are plagued by the social and economic divisions of our apartheid past.

“Land markets and state-assisted housing programmes, with limited funds and pressure to deliver, continue these patterns.

“Areas that are well served by public facilities and amenities and have easy access to employment opportunities are expensive and it is difficult for many households to afford to live in these areas.

“Instead, these households find affordable housing opportunities in areas further away and a lot of time and money is spent travelling to school, work, hospitals; etc.

This makes it difficult for these households to advance themselves (as) all their spare time and money is lost to long travel times.

“Households that have managed to stay in well-located areas find themselves pushed out as development interest in an area grows, land values (and resulting taxes) and rents rise and become unaffordable.”

The document notes inclusionary housing is “one way to provide affordable housing opportunities in well-located areas partnering with the private sector and using the public sector’s contribution to the value of the land in these areas”.

Meanwhile, public comment on the constitutional amendment to the Expropriation Bill has closed and the national government’s ad hoc committee amending Section 25 of the Constitution has until the end of this month to finalise proceedings.

DISCLAIMER: The publisher and editor of this magazine give no warranties, guarantees or assurances and make no representations regarding any goods or services advertised within this edition. Copyright ANA Publishing. All rights reserved. No portion of this publication may be reproduced in any form without prior written consent from ANA Publishing. The publishers are not responsible for any unsolicited material.

Publisher Vasantha Angamuthu vasantha@africannewsagency Executive Editor Property Vivian Warby vivian.warby@inl.co.za Features Writer Property Bonny Fourie bronwyn.fourie@inl.co.za Design Kim Stone kim.stone@inl.co.za

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O T H E R Buyers might be able to discuss a ‘rent to own’ or an instalment sale transaction with the seller. PICTURE: RODNAE PRODUCTIONS/PEXELS

P R O P E R T Y

N E W S

Understand ing the voetstoets clause

HELPING BUYERS WITH GREAT ADVICE FIRST-TIME buyers should arm themselves with a good team made up of a conveyancing attorney, mortgage consultant, property inspector and an insurance consultant, says Meyer de Waal, director of MDW Inc. They will guide them and help prevent them making common mistakes, some of which include: • Presuming subsidies for first-time buyers are available to only a select few.

• Not checking the status of on your interest rate can cost their credit profile before they apply for property finance.

• Thinking that if their full home loan is declined, it is the end of the home purchase journey .

Buying a property is one of the biggest investments one can make so, if a buyer’s credit score is not the strongest, a bank might approve their home loan, however, not at the best interest rate.

“The ‘extra’ percentage

you thousands of rand as you repay your home loan over 20 years.”

De Waal adds: “Buyers who have their home loans declined should consider a Finance-Linked Individual Subsidy Programme (Flisp) subsidy to bridge the shortfall between the home loan approved and purchase price.

“They could also discuss a ‘rent to own’ or an instalment sale transaction with the seller.”

Dirco purchase in US a cautionary tale

Buyers can have an independent party inspect the property on their behalf in order to determine whether there are any issues with it. PICTURE: JASON BRISCOE/UNSPLASH

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SALE agreement with a voetstoets clause means that the buyer acknowledges being aware of the condition of the property and has inspected it, says David Campbell of Meumann White Attorneys.

But many buyers do not realise this.

They also assume that the Consumer Protection Act (CPA) invalidates such clauses.

“Under the CPA such clauses are only invalid if the seller sells property in the ordinary course of his business. While there are certain situations in which a seller will not be able to rely on a voetstoets clause, these are limited.”

As a general rule, purchasers should be aware that they can have an independent party inspect the property on their behalf in order to determine whether there are any issues with it.

“After registration of transfer purchasers often become aware of issues of which the seller was not even aware.”

BUYERS URGED TO KNOW WHAT THEY’RE GETTING INTO

A property’s market value and the sale price are not necessarily the same thing. PICTURE: DILLON KYDD/UNSPLASH

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ROPERTY owners should always understand what constitutes the market value of their property and how this compares to a property’s selling price.

Rob Roper of Roper & Associates says when registered valuers determine the open market value of a property, they stipulate whether the figure includes or exclude VAT and if it includes or excludes the agent’s commission.

They also stipulate that all the necessary research establishing the property value has been undertaken; that the property does not have any restrictions on its title deed and/or the local authorities’ town-planning and building controls that may be prejudicial to the property and so affect

the value negatively.

“Both the buyer and seller must have full knowledge of the rights to the property usage, development potential and any title deed/lease agreement restrictions.”

A good example of this, he says, is the Department of International Relations and Co-operation which paid R100 million for a site in New York on which to build a new embassy, only to discover that they were not allowed to develop the site.

“Therefore, the R100m is not the open market value.”

Roper says “selling price” is a loose term that can mean the anticipated price of a property but is not necessarily the amount achieved or registered in the Deeds Office.

The property purchasing journey will be better if buyers know what the process entails. PICTURE: KINDEL MEDIA/PEXELS

PROPERTY buyers need to be fully aware of the buying process – and this includes all the legal requirements.

Maryna Botha, director of STBB, says most conveyancing attorneys offer valuable information sheets and booklets on the process and role players and most of this is written in understandable, plain language.

“Purchasers should read

up as much as they can and then ask questions, as much as they need to. The experience is so much better for them if they are involved and understand what is taking place.”

Donald Mokgehle, senior associate at Adams & Adams Attorneys, agrees: “We urge all potential property buyers to consult an estate agent or conveyancer prior to entering into an agreement

of sale for immovable property to ensure that they are provided with the necessary guidance at the outset of the process.”

He says that purchasing a property is one of the single biggest transactions that a person can enter into and so it is important that proper research is conducted beforehand so that they end up with the best property at the best price.

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PICTURE: JOSH HILD/PEXELS

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About the Company From its inception Meumann White Attorneys has positioned itself as a property law practice specialising in all types of property related matters. As a result of the commitment and dedication of all members of our team, the firm has seen continuous growth and has offices situated in Amanzimtoti, Berea, Bluff and Hillcrest. We have also seen growth in other spheres of law, namely the commercial, litigation, family law and estates departments.

Our Services Property Law Commercial Law Litigation Family Law Estates Insolvency

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031 835 9700

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We are a law firm that is out to break the mould by delivering hands on client orientated service through our experience and personal service; we offer expertise in opening of Sectional schemes, property transfers, Ante-Nuptial Contracts, Registration of Servitudes, Consolidations, Partition Transfers and everything in between!

Please contact us if we can assist – marco@cwninc.co.za www.cwninc.co.za • 033 940 2225

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Freestanding 3 bedroom homes from R3 450 000

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Third Phase NOW SELLING, Burgoyne Heights located in a secure complex in Richwood with electric fencing offering 18 quality 55sqm apartments on 1st, 2nd & 3rd Floors comprising of two well sized bedrooms with laminate flooring & bics, one bathroom with shower, WC & vanity basin. Open plan granite kitchen with choice of white or black splashback and gas hob, electric oven & extractor. Plugs with USB points. Tiled living area with ceiling fan leading out to well sized balconies with built-in braai. Prepaid electricity, gas & water.

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A G E N T S ’ D I R E C T O R Y

RAWSON PROPERTY GROUP Cape Town Office 021 658 7100

debbie.reabow@rawsonproperties.com

www.rawson.co.za

DE PLATTEKLOOF LIFESTYLE Cape Town Office 021 814 7000 Email: live@deplattekloof.co.za www.deplattekloof.co.za

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Third Phase NOW SELLING, Burgoyne Heights located in a secure complex in Richwood with electric fencing offering 18 quality 55sqm apartments on 1st, 2nd & 3rd Floors comprising of two well sized bedrooms with laminate flooring & bics one bathroom with shower, WC & vanity basin. Open plan granite kitchen with choice of white or black splashback and gas hob, electr KINGSFORD ESTATE oven & extractor.

Plugs with USB points. Tiled living area with ceilin fan leading out to well sized balconies with built-in braai. Prepaid Westville, KZN electricity, gas & water.

15/18 Apartments with storage units included.

Office: 087 012 5670 1 Parking bay. Optional extra’s available.

Email:DSTV info@kingsford.co.za & Fibre ready. First 3 clients that purchase successfully will ge FREE TV & FRIDGE (only 1 set per client) & first 5 clients can qualify www.kingsford.co.za a discounted purchase price (T&C’s apply)

Situated in close proximity to the new Richmond Corner Shopping Centre, Canal Walk, De Grendel Wine Farm amongst a fe to mention, main highways & on the Tygervalley Road as well as close to all other amenities. 5 Year NHBRC Warranty.

LEVY: +-R1,100 - +-R1,300 pm.

PRICED FROM

DOGON GROUP PROPERTIES Atlantic Seaboard Office 021 433 2580 Email: thekings@dogongroup.com www.dogongroup.com

Commencement Date: +-September 2021.

Estimated Completion Date:+-April 2022. * Rental Assist Option on Units listed at R1,229,000 T&C’s apply enquire within.

R1,189,000 TO R1,229,000MEUMANN JUST PROPERTY WHITE ATTORNEYS Barbara 082 693 9443 / barbarai@just.property INCLUDING TRANSFER & BOND REGISTRATION FEES. Cape Town R10,000 DEPOSIT.

Office 082 693 9443 Email: barbarai@just.property https://just.property/

About the Our KZN Company Services Contact: 031 835 9700 Email: info@meumannwhite.co.za www.meumannwhite.co.za From its inception Meumann White Attorneys has positioned itself as a property law practice specialising in all types of property related matters. As a result of the commitment and dedication of all members of our team, the firm has seen continuous growth and has offices situated in Amanzimtoti, Berea, Bluff and Hillcrest. We have also seen growth in other spheres of law, namely the commercial, litigation, family law and estates departments.

Property Law Commercial Law Litigation

Family Law Estates Insolvency

www.meumannwhite.co.za info@meumannwhite.co.za

DOGON GROUP RENTALS Sea Point Office 021 433 2580 Email: enquiries@dogongroup.com www.dogongroup.com

RHONDA RAAD PROPERTIES Cape Town Office 082 448 7795 Email: rrpsales@mweb.co.za www.rhondaraadproperties.co.za

THE WOODLAND Umhlanga Office 081 281 3960 Email: info@woodland.co.za www.woodland.co.za

DOGON GROUP PROPERTIES Southern Suburbs, Claremont Office 021 671 0258 www.dogongroup.com

BALWIN PROPERTIES Ballito Office 084 788 1020 Email: michelle@balwin.co.za www.balwin.co.za

SHELLEY RESIDENTIAL KZN Office 082 412 4463 Email: hello@shelley.co.za www.shelley.co.za

DOGON GROUP PROPERTIES Western Seaboard Office: 021 556 5600 or 021 433 2580 Email: enquiries@dogongroup.com www.dogongroup.com

Roper & Associates Durban and Surrounds Office: 031 207 8009 Email: valuers@roper.co.za www.roper.co.za

CWN Inc Durban Office: 033 940 2225 Email: marco@cwninc.co.za www.cwninc.co.za

southernsuburbs@dogongroup.com

www.property360.co.za

For A Consultation Call:

031 835 9700

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