When is there a cooling-off period after a sale; allowing a purchaser to have second thoughts?

Consumer Protection Act

The Consumer Protection Act (CPA) provides for a cooling-off period if a transaction results from direct marketing, allowing a purchaser to get out of a sale agreement. It is often mistakenly thought that this applies to all transactions where the CPA applies. This is not so.

Section 16 of the Consumer Protection Act says:

A consumer may rescind a transaction resulting from any direct marketing without reason or penalty, by notice to the supplier in writing …, within five business days after the later of the date on which

  1. The transaction or agreement was concluded; or
  2. The goods that were the subject of the transaction were delivered to the consumer.

What is direct marketing?

The Act defines direct marketing as follows:

“direct marketing” means to approach a person, either in person or by mail or electronic communication, for the direct or indirect purpose of-

   (a)   promoting or offering to supply, in the ordinary course of business, any goods or services to the person; or

   (b)   requesting the person to make a donation of any kind for any reason;

 This means that if you conclude a transaction for the supply of goods or services in response to an unsolicited offer made to you in person, or by telephone or by email, you can get out of the transaction within five business days.

The “cooling-off” period does not apply to sales that result from any other form of marketing such as conventional print advertising or any transaction concluded when a customer buys goods in a shop.

How can you get out of the transaction?

You can do this by without reason and without having to pay a penalty, by simply giving notice to the supplier in writing, or in another recorded manner and form.

You must give the notice within five business days after the date on which-

(a)   the transaction or agreement was concluded; or

(b)   the goods were delivered;

whichever is the later date.

Cooling-off period when buying certain residential property

Under the Alienation of Land Act, residential property transactions for R 250 000.00 or less are also subject to a “cooling-off” period of five working days. This does not apply to residential properties sold for more than R 250 000.00. This provision remains in place and is not affected by the CPA.

Section 29A of the Alienation of Land Act says that a purchaser may revoke the offer to buy the land or the deed of sale within five days after signing the offer or deed of sale personally or through an authorized agent acting on written authority.

The written notice to revoke must be signed personally or by an authorized agent and must be unconditional.

Where an offer is revoked or deed of sale is terminated within the cooling-off period, every person who received any amount from the purchaser or prospective purchaser in respect of the offer or sale, shall refund the full amount of such payment to the purchaser within ten days of the date on which the notice to revoke was delivered to the seller or his or her agent.

This article is a general information sheet and should not be used or relied on as legal advice. Always contact your legal adviser for specific and detailed advice.

Co-owning property with someone else: the ups and downs

What is co-ownership?

Co-ownership involves that two or more people jointly own the same property, for example land. In essence, they legally share ownership without dividing the property into physical portions for their exclusive use. It is thus commonly referred to as co-ownership in undivided shares.

It is possible to agree that owners acquire the property in different shares; for instance, one person owns 70 percent and the other 30 percent of the property. The shares appear from the title deeds registered in the Deeds Office.

The benefits:

In the case of a residential property, the bond repayments and costs of maintaining the home are halved. However, there can be problems, for example when one of the parties involved wants to sell and move, but the other not.

The risks:

If ownership is given to one or more purchasers, without stipulating in what shares they acquire the property, it is legally presumed that they acquired the property in equal shares.

The risks, the benefits and the obligations that flow from the property are shared in proportion to each person’s share of ownership in the property.

The agreement:

If two people own property together in undivided shares it is advisable to enter into an agreement which will regulate their rights and obligations, and also what happens should they decide to go their own separate ways.

The practical difficulties that flow from the rights and duties of co-ownership are captured by the expression communio est mater rixarum or “co-ownership is the mother of disputes”. It is therefore important to agree on the respective rights and obligations, including the following matters:

  1. In what proportion will the property be shared?
  2. Who has the right to occupy the property?
  3. Contributions to the initial payment to acquire the property.
  4. Contributions to the ongoing future costs related to the property.
  5. How the profits or losses will be split, should the property or a share be sold.
  6. The sale of one party’s share must be restricted or regulated.
  7. The right to draw funds out of an access bond over the property.
  8. The consequences of a breakdown of the relationship between the parties.
  9. Death or incapacity of one of the parties.
  10. Dispute resolution procedures.
  11. Termination of the agreement.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

References:

Co-ownership of property: what you need to know


http://www.privateproperty.co.za/advice/property/articles/the-pitfalls-of-property-co-ownership/5046
http://www.jgs.co.za/index.php/property/owning-prop-jointly-the-do-s-and-dont-s

Don’t let the smoke leave you broke: Farmers’ duties regarding fires

The National Veld and Forest Fire Act No. 101 of 1998 (“the Act”) is a legislative tool to help farm owners prevent potential financial and infrastructure losses as a result of fire. The definition of an “owner” in the Act includes a lessee or other person who controls the land in question. This article seeks to summarise a farm owner’s responsibilities in terms of the Act.

1. FIRE PROTECTION ASSOCIATIONS (“FPA”)

The Act provides for the formation of a FPA by landowners. The duties of a FPA include predicting, preventing, managing and extinguishing veldfires. They do not however fulfil the role of the fire brigade services. In order to register a FPA, the applicant must be capable of performing the duties imposed on a FPA and the applicant must be representative of owners in the area. The word “area” is not defined in the Act, but the act states that a FPA may be formed by owners who wish to co-operate in respect of an area which has regular veldfires, a relatively uniform risk of veldfires, a relatively uniform climatic conditions, or relatively uniform types of forest or vegetation. Only one FPA may be registered in respect of an area. The municipality and the owners of state land which fall within the area are obliged to become members of a FPA. The Chief Executive Officer of a FPA is the Fire Protection Officer and has the right to enter onto the land of a member of a FPA on reasonable notice, to carry out his duties.

The advantages of being a member of a FPA are that Institutions like RSA Agri, Agri Western Cape and insurance companies support, and in some cases require active participation in an FPA. IPW, GLOBALGAP and HACCP accreditations require membership.

The Winelands FPA was registered with the Department of Agriculture, Forestry and Fisheries in November 2014 amalgamating the former Stellenbosch, Tulbach/Wolseley, Witzenburg, Ceres/Kouebokkeveld and Warmbokkeveld FPAs. To become a member of the Winelands FPA you can download its application form at http://winelandsfpa.co.za/become-a-member/. A once off joining fee of R200.00 and an annual fee of R650.00 is payable for private land owners.

2. FIREBREAKS AND INVASIVE ALIEN PLANT CLEARING

The Act places a duty on landowners to prepare and maintain firebreaks on their side of the boundary to adjoining land. If an owner intends to prepare and maintain a firebreak by burning, the owner must determine a mutually agreeable date with the owners of the adjoining land for doing so, and inform the FPA of the area, if any. If an agreement cannot be reached, such owner must provide the owners of the adjoining land and the FPA for the area (if any), at least 14 days written notice of the period during which the owner intends burning firebreaks. An owner must ensure that a firebreak is wide enough and long enough to have a reasonable chance of preventing a veldfire from spreading to or from neighbouring land, does not cause soil erosion and it is reasonably free of inflammable material capable of carrying a veldfire across it.

The rules of the Winelands FPA state that members must systematically remove invasive alien plants accordingly using the methods prescribed in their rules, as they increase the fuel load of the fire. You can apply through the Winelands FPA for a burn permit for controlled or prescribed burning for the Stellenbosch, Drakenstein, Witzenberg, Breede Valley and Langeberg Municipal areas. Controlled burning is authorised only on Weekdays between the hours of 06:00 and 16:00 for the period from 1 May until 31 October annually.

3. FIRE FIGHTING

The Act places a duty on all owners to acquire equipment, protective clothing and train personnel for extinguishing fires that is reasonably required in the circumstances. Duties of a FPA include organising and training its members in fire fighting, management and prevention; and informing its members of equipment and technology available for preventing and fighting veldfires. A list of the Wineland FPA’s minimum prescribed equipment and protective gear can be found in its rules here. The Winelands FPA requires members or occupiers of land or their staff performing fire fighting to be trained in a basic veldfire fighting course by an accredited training institution and the prescribed modules for the course can also be found at the aforementioned link. The Cape Winelands District Municipality assisted by the Winelands FPA will conduct initial fire training for members and their staff at no cost.

An owner who has reason to believe that a fire on his or her land or the land of an adjoining owner may endanger life, property or the environment, must immediately take all reasonable steps to notify the FPA and the owners of adjoining land and do everything in his or her power to stop the spreading of the fire.

4. OFFENCES

Any person who fails to meet the requirements regarding firebreaks, fire fighting or who prevents a fire officer from doing their work is guilty of an offence under the Act and the abovementioned negligence amounts to fault. The person may be sentenced on a first conviction for that offence to a fine or imprisonment for a period of up to two years, or to both a fine and such imprisonment.

5. DELICTUAL LIABILITY

One of the advantages of being a member of a FPA is that you are presumed not negligent in civil proceedings for veldfires that started on, or spread from your property, in terms of section 34 of the Act. This presumption does however not mean that a third party cannot succeed with a delictual claim against you for the damages suffered by that party. In order to be liable for a delict, the claimant must prove the elements of a delict which are conduct (including omission), wrongfulness, negligence, causation and damage.

Before the presumption can apply, the claimant must prove that damages were caused by a veldfire. “Veldfire” is defined in the Act as a veld, forest or mountain fire. In Van der Eecken v Salvation Army Property Co, 2008 (4) SA 28 (T) the word “veldfire” included starting a fire on the “veld” portion of partly-cultivated land. In Boerdery BK v Transnet Ltd, 2005 (5) SA 490) (SCA) a fire broke out on a railway and from there spread to neighbouring property where it caused damages. The claimant could not rely on the presumption of negligence as the court ruled that the word “veldfire” is defined as the burning of veld and includes unoccupied and uncultivated portions of land which is distinct from the portion which is cultivated, occupied and built upon.

5.1 CAN MEMBERSHIP OF A FPA PER SE CREATE LIABILITY

A question which arises is whether a party who suffered loss due to a veldfire within the area of a FPA, can take legal action against a member of the FPA to recover his/her losses, where a FPA did not prevent a fire from spreading. That is whether membership of a FPA per se can create a liability. The duty to prevent fire spreading appears to be restricted to landowners and occupiers. In Van Wyk v Hermanus Municipality 1963 (4) SA 285 (C) a fire broke out on the land of a third party and the municipality was held to be under no obligation to extinguish the fire. Therefore it can be argued that there can be no negligence if there was no duty of care for the FPA. Furthermore as a FPA is created by statute it appears to have juristic personality and limited liability. Accordingly it would be unlikely that the members of the FPA would be held liable in their personal capacities for the damages. However no case has been reported in which a FPA has been sued, nor its members in their capacity as members of an FPA.

5.2 DUTY OF CARE TO NEIGHBOUR

In the case King v Dykes, 1970 (4) SA 369 (RS) a fire was observed on a farm adjacent to the defendant’s farm. During the night the fire crossed the river onto the defendant’s farm and, after burning out a small patch of veld covered sparsely by grass, died down at its own accord. Early the following morning the defendant visited the scene to inspect the fire, and found that apart from smouldering debris it was no longer burning. He believed there was no further danger from it and returned to the headquarters on the farm. While loading tobacco for conveyance, a thin spiral of smoke was observed in the general direction of the fire. It was important for the defendant to complete the loading of his tobacco, and as a result it was only some 20 to 30 minutes after the smoke had been first observed that the defendant, with his employees, returned to the scene to extinguish the rekindled fire. Due to a strong wind, his efforts to do so were unavailing, and it spread to the plaintiff’s property. The appeal court laid down that there was a legal duty on a farmer who had not started the fire but onto whose land the fire had spread from an adjoining property, to take reasonable steps to fight the fire and to try to prevent it from spreading. Here an undoubted moral duty was translated into a legal duty. The case explained that the idea that prevailed in the past that ownership of land conferred the right on the owner to use his land as he pleased was giving way to a more responsible approach that an owner may not use his land in a way prejudicial to his neighbours or the community and that he holds the land in trust for future generations.

5.3 VICARIOUS (STRICT) LIABILITY FOR ACTION OR OMISSION OF EMPLOYEES

Where an employee, acting within the scope of his employment, commits a delict, the employer is fully liable for the damages. It is a form of strict liability as fault by the employee is not required. There must be an employer-employee relationship at the time when the delict is committed. In Viljoen v Smith, 1997 (1) SA 309 (A), a farm worker went onto the neighbouring farm to relieve himself and started a fire when lighting a cigarette. The question was whether he deviated from acting in the scope of his employment and acted in advancement of his personal interest. This is a decision based on the facts of each case and it is a question of degree. Even when an employee makes a deviation solely for his own purposes, the employer may remain liable for any negligence committed by the employee. The employer was held vicarious liable for the damages that the fire caused to the neighbouring property.

6. INSURANCE

It is important to annually update your insurance policy. Farm owners need insurance against fire damage to crops, assets as well as natural rangeland and pastures. Your asset cover should include buildings, machinery and equipment, damage to stock (including livestock), loss of income, vehicles and funeral expenses. Owners must make sure that they specifically request cover for fire spreading to plantations or sugar cane if they are on neighbouring properties. Should a fire start on your farm and then spread to neighbouring farms, the owner should be covered for damages for which the owner may become legally liable for. Insurance cover can include all reasonable fire extinguishing costs and expenses to prevent the spreading of such fire beyond the borders of the insured’s own premises.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Trusts – What records should be kept and who can request information about trusts?

By Sisteen Geyser

Ever wondered what records should be kept by trustees and whether you can request documents or details from the Master of the High Court, or from the trustees themselves?

What are a trustees’ record-keeping duties?

The Master may issue a written request to Trustees to account to his/her satisfaction and in accordance with his/her requirements about the trustees’ administration and disposal of trust property in terms of Section 16 of the Trust Property Control Act.

The Master may ask that any book, record, account or document relating to the trustees’ administration or disposal of the trust property be delivered to him/her. Trustees may also be called upon to answer questions put to them by the Master concerning the administration and disposal of trust property.

The Master may, if he/she deems it necessary, cause an investigation to be carried out by some fit and proper person appointed by the Master, into the trustees’ administration and disposal of trust property, and may make an order concerning the costs of the investigation.

These records and documents should be kept safe until the expiry of a period of five years from the termination of a trust in terms of Section 17, and may not be destroyed without the Master’s written consent.

What if a trustee does not comply with his/her duties?

If any trustee fails to comply with a request for records by the Master or to perform any duty imposed by the trust instrument or by law, the Master or any person having an interest in the trust property may apply to court for an order directing the trustee to comply with such request or to perform such duty in terms of Section 19.

Copies of Documents

Section 18 specifically provides for the furnishing of copies of the documents under the Master’s control to a trustee, his/her surety or his/her representative or any other person who in the opinion of the Master has sufficient interest in such document, upon written request and payment of the prescribed fee.

Public access to trust information:

Previously some Master’s offices were reluctant to give the public access to information about trusts. In March 2009 the RSA Acting Chief Master brought some clarity and uniformity with a directive regarding access to information.

The procedure to obtain information on a Trust (such as names of Trustees etc.), can now be summarized as follows:

  • Written application should be made to the Office where the Trust is registered, providing reasons why this information is needed.
  • If the request is by a trustee, his/her surety or representative, they will have automatic access to any information/documents in the file.
  • The Master must exercise his/her discretion on the application of any other person, and weigh up the interest of the parties involved in deciding whether or not the information should be provided.  After the Master has requested the input of the Trustees and beneficiaries, he/she will exercise a discretion whether to provide the applicant with the information or not.
  • Should a request for information be denied by the Master’s Office, the applicant will need to apply to the Information’s Officer of the Department of Justice.

It would seem, therefore, that as long as the applicant can provide reasons and show “a sufficient interest” in respect of the trust, the Master should supply him/her with the information.

Beneficiaries’ rights to information:

In the case of Doyle v Board of Executors 1999 2 SA 805 (CPD) the court found that a beneficiary is entitled to request and receive “full, true and proper accounting, duly supported by vouchers” concerning the affairs of the Trust.

Should you require any assistance in obtaining information about a trust in which you have an interest, or need advice on your rights and duties as trustee or beneficiary, please contact our Trust and Estate Department for further assistance.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Transfer of a property: Is VAT or transfer duty payable?

A purchaser is responsible for payment of transfer cost when acquiring an immovable property, but it should further be established if the transaction is subject to the payment of VAT or transfer duty to SARS.

When an immovable property is transferred, either VAT or transfer duty is payable. To determine whether VAT or transfer duty is payable one should look at the status of the seller and the type of transaction.

VAT

If the seller is registered for VAT (Vendor) and he sells the property in the course of his business, VAT will be payable to SARS. A vendor is a person who runs a business and whose total taxable earnings per year exceed R1 000 000. He will then have to be registered for VAT. A further stipulation is that the property that is being sold must be related to his business from which he derives an income.

The Offer to Purchase should stipulate whether the purchase price includes or excludes VAT. If the Offer to Purchase makes no mention of the payment of VAT and the seller is a VAT vendor, it is then deemed that VAT is included and the seller will have to pay 14% of the purchase price to SARS. It is the seller’s responsibility to pay the VAT to SARS, except if the contract stipulates otherwise.

When a seller is not registered for VAT, but the purchaser is a registered VAT vendor, the purchaser will still pay transfer duty but can claim the transfer duty back from SARS after registration of the property.

Transfer duty

When the seller is not a registered VAT vendor it is almost certain that transfer duty will be payable on the transaction. A purchaser is responsible for payment of the transfer duty. Transfer duty is currently payable on the following scale:

  1. The first R750 000 of the value of the property is exempted from transfer duty.
  2. Thereafter transfer duty is levied at 3% of the value of the property between R750 000 and R1 250 000.
  3. Where the value of the property is from R1 250 001 up to R1 750 000, transfer duty will be R15 000 plus 6% on the value of the property above R1 250 000.
  4. If the value of the property falls between R1 750 001 and R2 250 000, transfer duty will be R45 000 plus 8% of the value of the property above R1750 000.
  5. On a property with a value of R2 250 001 and above transfer duty is R85 000 plus 11% on the value of the property above R2 250 000.

Transfer duty payable by an individual or a legal entity (trust, company or close corporation) is currently charged at the same rate.

Transfer duty is levied on the reasonable value of the property, which will normally be the purchase price, but should the market value be higher than the purchase price, transfer duty will be payable on the highest amount. Transfer duty is payable within six months from the date that the Offer to Purchase was signed.

In instances where a party obtains a property as an inheritance or as the beneficiary of a divorce settlement, the transaction will be exempted from payment of transfer duty.

Where shares in a company or a member’s interest in a close corporation or rights in a trust are transferred, the transaction will be subject to payment of transfer duty if the legal entity is the owner of a residential property.

Zero-rated transactions

This means that VAT will be payable on the transaction but at a zero rate. If both the seller and the purchaser are registered for VAT and the property is sold as a going concern, VAT will be charged at a zero rate, for instance when a farmer sells his farm as well as the cattle and the implements.

Exemption

Transfer duty, and not VAT, will be payable when a seller who is registered for VAT sells a property that was leased for residential purposes.

It is thus important for a purchaser to establish the status of the seller when buying a property. The seller who is registered for VAT should carefully peruse the purchase price clause in a contract before signing, to establish if VAT is included or excluded.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

What are tenant and landlord duties?

When it comes to letting a property – both the tenant and the landlord should always enter into any letting agreements openly and honestly and intending for each party to get proper value. Often it’s the approach which the parties adopt which will determine whether the relationship between the parties and the benefits they derive therefrom is mutually satisfactory. Furthermore, there are important duties that each party is expected to do.

Non-Statutory Law (Common Law)

The tenant is obliged to:

  • Pay the proper amount of rent in the proper commodity at the proper place and time.
  • Take good care of the property and not use it for other purposes than for which it was let.
  • Restore it to the same condition that he received it at termination of the lease.
  • Common law states simply that the full rent must be paid at the proper time – the time and date agreed by both the tenant and the landlord. It does not provide the tenant with a 7-day grace period.

Statuary Law (The Rental Housing Act)

The tenant is obliged to:

  • Make prompt and regular payment of rent and other charges payable in terms of the lease.
  • Make payment of a deposit – the amount of which should be agreed upfront between the landlord and tenant.
  • Have a joint incoming and outgoing inspection with the landlord.

The property owner

The prime duty of a property owner is to give a tenant occupation and control of the property. Furthermore, the owner has to maintain the property in its proper condition, subject to fair wear and tear (defined as the ‘unavoidable consequence of the passage of time’). The owner must also ensure that normal running repairs to the property are carried out.

A second important duty of the owner is a guarantee that the tenant will enjoy the undisturbed use and enjoyment of the property for the duration of the lease. This duty has three facets:

  • The property owner must not unlawfully interfere with the tenant’s rights although he or she is entitled, in certain circumstances, to interfere lawfully if, for instance, the tenant has to vacate the premises temporarily to allow necessary repairs to be done. Although an owner also has a right of inspection, this right must be exercised in a reasonable manner.
  • The owner must protect the tenant against being disturbed by ‘third parties’ who may claim a stronger right to the property than the tenant. For example, if you sub-let property from a lessee whose lease is invalid (perhaps because it has not been drawn up properly), you could be evicted by the original owner of the property. If this happens, the person who sub-let the property to you is obliged to protect you from being evicted.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Reference:

Source 1

Source 2

Source 3

Pay your levies, or else…

Dear Mr Lawyer

I am the owner of a sectional title, and I have paid my levies every month as required, until the water started seeping through the ceiling of my enclosed balcony into my section when it rains. The leak was clearly emanating from a defect in the common property. I asked the body corporate on numerous occasions to repair the defect, yet after four months of writing letters and sending emails the body corporate still has not done anything to honour this simple request. As a frustrated owner I resorted to desperate measures and employed a contractor to repair the property defect. I settled the bill myself.

May I withhold my levies for a period to set off the money that is owed to me by the body corporate?

Dear Mr Owner

Although this action may sound reasonable, the right to stop paying or to set off a debt against levies is not legally justified and owners are not, under any circumstances, entitled to simply withhold levies.

There is no provision in the Sectional Titles Act 95 of 1986 or the rules that gives an owner the right to withhold levy payments. Even if an owner incurs expense in performing an emergency repair to the common property, and believes that the body corporate owes him money, the owner may only set off the debt against the levies once it becomes liquid.

An amount can only be liquid once it has been agreed upon. An owner cannot set off the amount he believes he is entitled to deduct. The trustees, judge or arbitrator must have confirmed the amount.

If Mr Owner does withhold his levies without the amount being liquid, he is subject to the following sanctions in terms of the prescribed rules:

  • Firstly, the trustees are entitled to charge interest on arrear amounts at a rate determined by them, and so the defaulting owner may receive a larger account, due to the interest on his arrears, than if he had paid his levies.
  • What is more, The Sectional Titles Act imposes a positive obligation on trustees to recover levies from defaulting owners. Not only does the Act empower them to charge interest, the scheme attorneys will most likely issue summons against the defaulter for all costs that the Body Corporate may incur in recovering any arrears.
  • Secondly, the prescribed management rules provide that, except in the case of special and unanimous resolutions, an owner is not entitled to vote if any contributions payable by him in respect of his section have not been duly paid. Therefore, an owner who withholds his levies is unable to vote for ordinary resolutions in respect of the section that he is withholding levies on.

Mr Lawyer, how does an owner deal with a situation where he believes the body corporate is liable for payment?

A dispute must be declared with the Body Corporate by written notice of the dispute or query to the trustees. The trustees or Body Corporate then have 14 days from receipt to resolve the dispute. During this period, the parties should meet to try and resolve the dispute. If there is no resolution after the 14-day period, either party may demand that the dispute be referred to arbitration. The arbitrator must make his/her recommendations in settlement of the dispute within 7 days from the date of commencement of the dispute. The decision of the arbitrator shall be final and binding and may be made an order of the High Court.

It is clear that prescribed processes are in place according to which disputes and related issues can be settled. Not only will this ensure that you act within the legal guidelines, but it will also eliminate unnecessary frustration.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Trouble with the neighbours

You and your neighbour have been good friends for years; your children have grown up together and you have always thought of him as a reasonable man, but lately you’re not so sure. His trees’ branches overhang into your property, blocking your gutters with leaves, not to mention the root system creeping closer to your home’s foundation. When you confront him, he flatly refuses to do anything about it, since they are, after all, trees he and his wife planted when they bought the property 30 years ago!

The question in everyone’s mind is, what can I do about my neighbour’s trees and plants that are causing damage to my property and discomfort to me? He most certainly has the right to do on his property as he pleases, but what about my right to use and enjoy my property? Surely his enjoyment cannot be at the cost of someone else?

Trees with lateral root systems are often a culprit in neighbourly disputes. In the case Bingham v City Council of Johannesburg 1934 WLD 180, the municipality planted trees along the footpath for beautification purposes. The problem was that they chose to plant oak trees, which have strong lateral root systems that drain the soil surrounding them. The flowers and shrubs in Bingham’s garden died as a result of this, and even worse, the strong root system was making its way to the foundation of his home. Due to the threat to the property (the house) the court ordered the municipality to remove the trees.

In Vogel v Crewe and another [2004] 1 All SA 587 (T) the issue regarding roots was also discussed in court. Vogel and Crewe were neighbours and Crewe was of the opinion that a tree planted about two metres from the wall, separating the two properties, was the cause of all the problems on his property. According to him the tree’s root system was causing damage to the boundary wall and leaves from the tree were falling into his swimming pool and blocking his gutters and sewage system. The court’s approach was based on an objective test of reasonableness. They took into account the benefits of protecting the tree, being its visual pleasure, shade, and the oxygen it produced, as opposed to the trouble it was causing Crewe. Crewe was not able to prove that the problem with the leaves in his swimming pool, gutters and sewage system was caused by the tree in question, and the court found that the wall separating the two properties could easily be repaired. No drastic action, like removing the tree, was necessary and Crewe failed in his application.

From the above it is clear that the court will only order the removal of a tree should the roots pose a real and immediate threat of damaging the property. They will not order the removal of overhanging branches for the shedding of leaves.

In Malherbe v Ceres Municipality 1951 (4) SA 510 A it was confirmed that should a neighbour’s tree branches overhang or the roots spread into your property and the owner refuses to remove same, you may chop them off on the boundary line.

Hopefully you will be able to resolve tree-related issues with your neighbour in a courteous way, and remember, you also have the right to enjoy your property.

References:
Bingham v City Council of Johannesburg 1934 WLD 180
Vogel v Crewe and another [2004] 1 All SA 587 (T)
Malherbe v Ceres Municipality 1951 (4) SA 510 A

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Why is the transfer of my property taking so long?

After signing a deed of sale, the purchasers often want to move into the property with great excitement and as soon as possible. When they are informed of the process involved prior to the property being transferred this may place a damper on their excitement. Coupled with this there may even be delays in the transaction.In order to avoid unnecessary frustration it is vital that parties to the transaction understand the processes involved and that delays are sometimes inevitable. Besides possible delays there are a number of processes that need to be followed before a house can be registered in a purchaser’s name.

At the outset, it must be determined if the deed of sale is valid and binding between the parties. If not, a valid and binding contract will first have to be concluded between the parties.

The deed of sale will normally be the starting point in a transaction for a conveyancer who has been instructed to attend to the transfer. This conveyancer is also known as the transferring attorney and is normally the main link between the other attorneys involved the transfer transaction. Other attorneys involved are normally a bond attorney and/or bond cancellation attorney.

A major role of the transferring attorney is informing any mortgagees, for example banks, about the transfer so that any notice periods for the cancellation of bonds can start running. The notice period is normally up to 90 days. If the bond is cancelled before then, there could be penalties payable. The transfer may therefore be delayed as a result of the notice period.

If the purchaser will be registering a new mortgage bond to finance the transaction, a bond attorney will be appointed. Since the transferring attorney will not normally be aware of whom the instructed bond attorney is, the bank will usually inform the bond attorney of who is attending to the transfer. The bond attorney will then first make contact with the transferring attorney.

Obtaining the various certificates, receipts and consents applicable to the transaction in question also takes time. Examples of these are rates clearance certificate, transfer duty receipt, homeowners association’s consent to the transfer, levy clearance certificate, electrical compliance certificate and plumbing certificate.

The transfer duty receipt is obtained from the Receiver of Revenue and should be lodged with all property transactions, even if no transfer duty is payable to the Receiver of Revenue. During 2013 it took approximately seven working days from the submission of the request, until the transfer duty receipt was issued.

The rates clearance certificate is obtained from the local municipality in the area where the property in question is located. The transferring attorney will first request the municipality to inform him of the amount they require in order to issue the certificate. After receipt thereof the amount can be paid and the transferring attorney will then await the issued certificate. The time this takes differs from municipality to municipality. In the City of Cape Town, during 2013, figures were mostly issued on the same day they were requested and the receipt was issued within approximately five working days after payment. This time frame is largely affected by whether or not the municipality works on an electronic system.

If the property is located in an area where a homeowners’ association is established, there will normally be a title deed condition in terms of which the consent of the homeowners’ association must be obtained prior to the transfer. The time it takes for obtaining this certificate differs from one homeowners’ association to the other.

After an inspection by a plumber or electrician it may be found that certain work needs to be carried out before the certificates will be issued. If the work that must be carried out is extensive this can cause major delays with the transaction.

If the property is being sold by an executor of a deceased estate, the consent of the Master of the High Court must first be obtained before the property can be transferred. Major delays can be experienced if the Master of the High Court refuses to give such consent until certain requirements have been met.

Once the transferring attorney is satisfied that all relevant documents are in place he will arrange simultaneous lodgement at the Deeds Office by all attorneys involved in the transaction. It is therefore vital that the bond attorney has by this time obtained the required approval to lodge from the mortgagee and that the bond cancellation attorney has the required consents in place to cancel the existing bond/s on the property.

Once all the documents are lodged at the Deeds Office, an internal process is followed, which has different time frames in the various Deeds Offices. This time frame can also vary in a particular Deeds Office. It is best to enquire from your conveyancer what the Deeds Office time frame is at any given stage.

The list of possible delays in a transaction varies from one transaction to the other and the possibilities are endless. It is advisable to contact your conveyancer for an explanation should you feel that the process is taking too long.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

 

The Traffic Officer confiscates your cellphone: What you should know!

Since 2011 the City of Cape Town: Traffic By-Law, 2011 has made it possible for an authorised officer to confiscate your cellular device if you are caught using it in your car while driving. If you end up getting caught red-handed, these are a few things you should know to make sure that all the correct procedures are followed when your cellular device gets confiscated.The City of Cape Town: Traffic By-Law, 2011 (hereinafter “the By-Law”) prohibits driving a motor vehicle on a public road, firstly, while holding a cellular or mobile telephone or any communications device with any part of the body and, secondly, while using or operating a cellular or mobile telephone or other communication device unless it is affixed to the vehicle (like a handsfree kit).

According to the By-Law an authorised officer may, in the interest of public safety, confiscate a handheld communication device if he informs the owner of such device of the reasons for doing so. He must issue a receipt to the owner, stating the place at which such device may be claimed, and he must follow all procedures contained in any policy of the city dealing with the confiscation and impoundment of property. The policy applicable in the City of Cape Town is called the Standard Operating Procedure on the Impoundment of Goods and Animals, 2012.

An authorised official exercising authority in terms of any By-Law of the City to impound goods, shall issue to the offending party a receipt for any property removed and impounded. This receipt must indicate:

a) A list of the property to be removed and impounded;

b) the physical condition of the goods (to ensure that they are returned in the same physical condition that they were in when impounded);

c) the address where the impounded goods will be kept;

d) the hours during which the goods may be collected;

e) the maximum period for storage of goods before they are disposed of;

f) the conditions for the release of the impounded goods;

g) the name and office number of a council official to whom any representation regarding the impoundment may be made;

h) the date and time by when representation must be made;

i) the terms and conditions relating to the sale of unclaimed goods, by public auction, where no claim (and/or representation) is received.

The City may sell any cellular device that hasn’t been claimed within ninety days after the date of impoundment through public auction which shall be advertised in local newspapers. Municipal officials and councillors, their spouses, relatives and acquaintances are prohibited from purchasing any of these impounded goods. Fees may be levied for the storage of the cellular device and any other expense incurred by the Council during impoundment. Said fees shall be determined by Council and may be adjusted from time to time. Fees and fines shall be paid at the Council cash office between the hours of 08:00 and 16:00 on Mondays to Fridays.

Goods may be returned to the owner, or his or her representative, upon presentation of proof of payment of all fees related to the impounding and storage of the goods and any fines imposed prior to and/or during impoundment. Owners or their representatives can collect their goods during the hours and at the venue indicated in the impoundment notice served on the offender.

Officials of the City must take reasonable steps to prevent any damage to impounded goods; however, it will not be responsible for any damage caused to goods where a reasonable duty of care was exercised. Digital photographs shall be taken of all impounded goods.

A person who contravenes a provision of this By-Law commits an offence and a person who commits such an offence is, on conviction, liable for a fine or a term of imprisonment not exceeding 3 years, or both.

Reference List

  • The Standard Operating Procedure on the Impoundment of Goods and Animals, 2012
  • The City of Cape Town: Traffic By-Law, 2011

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)