Category: Property Law (page 1 of 3)

What does 2019 have in store for the economy and the property market?

There is no doubt that 2018 was a very challenging year for both the economy and the property market. As 2019 is in full swing, you can’t help but wonder what challenges this year will hold for both the economy and the property market. In 2018, it was mainly business as usual, however, it is important to note that the demand for properties between the 3-million and 5-million mark decreased through the year. Reasons for this could have been the weak economy, political uncertainty and land ownership concerns.

So, what will the market have in store for home buyers/sellers in 2019?

It is argued that the market will most likely remain flat during the first few months of 2019. The reason being that we are heading towards the May elections, and this could be a turbulent period in 2019. In terms of the economy, there is a feeling of positivity in the air as the economy is expected to start lifting in the middle of 2019. The feeling of positivity can be attributed to the fact that the rating agencies have kept a stable outlook and President Ramaphosa has shown his commitment to eradicating corruption within the government.

It’s important to note that the final quarter of 2018 also had an impact on the economy and the property market for 2019. The festive season has come and gone, and as can be expected, many consumers found themselves indulging in the festivities and overspending. This has impacted many South African households’ finances, as there is now an increased pressure to meet monthly commitments in terms of housing bonds and rents. This should only have an impact on the economy and the property market in the early part of 2019.

It is also expected that the interest rate will go up with 2% over the next 18 to 24 months. This will, without a doubt, put even more pressure on household finances, in terms of higher bond and credit repayments, as well as cost hikes. This will have a huge impact on affordability.

If you are planning on buying or selling property in 2019, it’s important to keep price expectations realistic. Buyers should also strike while the iron is hot and not wait for too long, as all economies and property markets are subject to ups and downs. In conclusion, 2019 is the perfect year to buy property. Ensure that you do your research and make well-informed decisions when it comes to the property you want to buy, as well as the purchase price of the said property.

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)

Buying property online

We all know the hassle of moving, even if it is just around the corner. Due to family reasons, employment opportunities, or university studies, it is not uncommon for people to not only move down the road but also to move to different provinces in South Africa.

This is indeed a challenging task, however, technology has made it a lot easier to find the perfect home for you, even if you are nowhere near it.

Here are some tips you can follow if you are planning on buying property in another province and need to find your new home:

  1. Seize the power of social media:

Social media is a quick and efficient way to let your friends and family on social media know about your home search. The more people that know about your planned move, the more chance you have of someone in that area knowing of the perfect fit for you.

  1. Go online:

The first place that you can start your property hunt is online. You can easily gain access to massive amounts of available properties and information from the comfort of your own home.

  1. Virtual tours:

Don’t just look at the photos of the property posted online. A lot of properties have full virtual tours which means that you can take a virtual stroll through the entire property without physically being there. If the property does not have a virtual tour, you can use tools such as Google Maps to view the property and neighbourhood from the outside, giving you a clear indication of whether this neighbourhood is the perfect fit for you.

  1. Visit the area:

Visiting the surrounding area is ideal, but not always possible, especially if the property is far away. However, it is still a good idea to visit the area before moving. When you visit the area, you will have the opportunity to see the area and surrounds in person. You can plan your visit ahead, and schedule your viewings with your estate agent.

 

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)

Buying a Property on Auction

Properties sold on auction is not necessarily the bargain buy everyone seems to think it is. This is because the property on auction isn’t necessarily being sold due to financial distress. In today’s times, homeowners have turned to auction as a means of selling their property as soon as possible and for as a high a price as possible. When planning on buying a property on auction, it is important to do your homework and prepare. This is what you need to know about property auctions:

There are different types of properties that can be bought on auction, they include:

  • Property up for sale by the owners themselves as a means of selling the property as quickly as possible.
  • Sale in execution. This is a sale due to the financial distress of the property owner.
  • Property in possession. Property that has been bought back by the bank, in other words, a repossessed property.

What to do before the auction:

Before the auction, there are certain things you can do to prepare, this includes:

  • Viewing the property before the auction, as these properties are sold “as is”.
  • Gather additional information on the property being auctioned ahead of time. Find out more about the area, local schools, facilities, asking price for properties in the said area etc.
  • Make sure to have a copy of the Conditions of Sale. The reason being, before buying this property, it is important to know exactly what you are buying. You could be taking over accounts that have not yet been paid etc.
  • If you are going to bid on a property, ensure that your finances are ready well in advance.
  • Finally, if you cannot physically attend the auction, and want to bid by phone, you will have to organise this in advance.

What to do at the auction:

When arriving at the auction, there are certain processes that need to be followed before you can bid on the property, this includes:

  • When arriving at the auction, you need to register to bid on the property. To register, you will need your ID, proof of residence, and the fee for registration.
  • Go through the provided Conditions of Sale and ensure that no changes have been made to the document.
  • Ensure that the auctioneer can clearly see you.
  • If your bid is successful, you will be instructed to sign the Conditions of Sale as a means of confirming your purchase.
  • You will then have to pay the auctioneer’s commission which is usually 10% of the purchase price plus VAT, as well as a deposit of 5% of the purchase price.
  • You will need to have the funds shortly after the auction as this is a guarantee to the seller that you can purchase the property.

What will happen after the auction:

After the auction, if the buyer of the property is dissatisfied with the property for whatever reason, it’s too late. This is because auction properties are sold “voetstoots”, which means “as is”. This is one of the main reasons why it’s so important to see the property as part of your preparation before the auction. It’s also important to note that if the buyer defaults on the sale, the seller can take legal action and force the buyer to fulfil the contract. Before bidding on a property, it is important to make sure that you want to buy and can afford to buy the property being auctioned, as the breaching of contracts comes with serious financial and legal repercussions.

Tips for renting out your property

Regardless of whether the property you are renting out is a studio apartment, a cottage at the back of the garden or an entire estate, the same rules apply and need to be understood in order to make a success of your investment in the property. To invest in a property is a very big commitment and you don’t want to end up in a situation where you lose on the investment because you didn’t follow all the necessary steps to prevent this from happening.

  1. Handle your tenants constructively

Establish a fair system of setting, collecting, holding, and returning deposits. Inspect and document the condition of your property before the tenant moves in to avoid conflict regarding the refund of deposits. This inspection should preferably be done with the tenant being present.

Try to resolve disputes with your tenants without the involvement of lawyers and lawsuits. If you’re having an argument with a tenant that doesn’t immediately call for an eviction, meet with them and try to resolve the problem in person.

  1. Keep your tenants happy

Keep up to date on maintenance and repairs needed to the property and make sure these are done when the tenants request any work to be done. If your property is not kept in good condition, good tenants will not want to stay on. Remember, your tenants are your customers, make sure they are happy.

Although it is recommended to inspect your property from time to time to check that the condition of your property is up to standard, you must remember that your tenants’ privacy must be respected at the same time. Notify them if you’re planning to inspect the property and make sure to let them know a while in advance.

  1. Make sure the property is safe

Don’t let your tenants and property be easy targets for criminals. If the property needs security additions, take the necessary steps to protect it. Proper lighting, trimming tree branches that hang over the wall and efficient security gates are often all that is needed.

If there is a hazard such as mould due to leaks, your tenants should be informed beforehand and steps should be taken to fix the problem. If your tenants later suffer from health problems that can be linked to the hazard in the property, you might be held responsible.

Conclusion

It is advised to document everything possible regarding the renting of your property – from the rental contract to how you handle complaints. Remember that it is of utmost importance to get insurance for your property. You must protect yourself against possible losses to your rental property caused by anything from vandalism to natural hazards.

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)

THERE IS A WAY TO KEEP THE VIEW

When you purchase a house with a view, you probably think that you are going to enjoy this view every day for the rest of your life. Until you receive a flyer with a picturesque multi-story building guaranteed to block your view. This will definitely result in a few disputes that will leave you wishing you had secured your view.

Right to the view

Just because the property has an unrestricted view, it does not mean that the view is the owner’s. To secure it, a registration of a servitude against the title deeds of the properties in the Deeds Office. This includes the natural growth of trees or plants that will block the view over time.

The registered servitude

The registration of the servitude must be made clear where the intentions of the servitude are established and made clear. This is so that when an issue regarding property views reaches the court, the court would need not be concerned about ambiguity and surrounding circumstances.

Court’s considerations

Before reaching a decision, the court may be mindful of considerations when the servitude is interpreted. The result will try, as far as possible, to alleviate burdens on the servient property owner. Emphasis is placed on views and the purpose of the servitude as to provide unobstructed views as they existed at the time of the creation of the servitude.

A new property owner may have to consider the type of building they are wishing to erect so it does not impose on any restrictions in terms of an agreement made by the “owner” of the view.

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)

UNLAWFULLY EVICTED? HERE’S A PIECE OF PIE

Unless the sheriff of the court has evicted you, you should remain right where you are. If anyone else carries out an eviction, it constitutes as unlawful according to the Prevention of Illegal Eviction from and Unlawful Occupation of Land (PIE) Act.

Regarding the eviction process, the PIE Act stipulates this:

  • Certain procedures must be followed
  • Notice of the intention of getting a court order must be given to the tenant
  • The landowner or landlord must apply to the court to have a written notice served on the tenant
  • The notice must be served at least 14 days before the hearing

The Rental Housing Tribunal (RHT) works alongside the Rental Housing Act, fostering the relationship between landlords and tenants to be one of fairness in terms of lease agreements and any unlawful evictions and unlawful notices to vacate. From the moment the lease agreement terms have been breached, for example, the tenant fails to make rent payments, the landlord may cancel the agreement and the tenant then becomes an illegal occupier.

The PIE Act states that no one may be without property except in terms of law of general application.  Arbitrary deprivation of property from any person is unlawful. Additionally:

  • no one may be evicted from their home, or have their home demolished without an order of court made after considering all the relevant circumstances;
  • it is desirable that the law should regulate the eviction of unlawful occupiers from land in a fair manner, while recognising the right of land owners to apply to a court for an eviction order in appropriate circumstances;
  • special consideration should be given to the rights of the elderly, children, disabled persons and particularly households headed by women, and it should be recognised that the needs of those groups should be considered.

The notice does not guarantee that the unlawful tenant will leave the premises as the court can only grant eviction if it is just and equitable. The owner must also have reasonable grounds for eviction and alternative accommodation available to the tenant.

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)

BEFORE LEASING, INCLUDE THESE IN THE AGREEMENT


If you consider leasing out your property, it is important not to overlook any requirement and expectations you may have of the incoming tenant. A basic lease agreement should at least have the below stipulated in detail:

  1. Basic information

This includes the details of those who are party to the agreement, the address of the property being leased out, and the lease period.

  1. A deposit and other fees

The purpose of a deposit is to ensure that, should there be any damages to a property due to the tenant’s fault, they could be repaired without the landlord incurring the expenses or waiting for the tenant to pay for said damages. The deposit amount must be stated in the agreement and is payable to the tenant, after damages have been deducted, when the lease agreement has been terminated.

  1. Responsibilities, repairs and maintenance of the premises

Landlords are not able to oversee everything the tenant does, and this is where the responsibility and maintenance clause comes in. If the property’s utilities will be included in the rent, it should be stipulated and not assumed. The general upkeep, such as mowing the lawn or cleaning the pool, must be stated as to whom will be responsible for it. Saying it orally will not suffice because if it is not in writing, it’s easy to challenge it.

  1. Subletting and limits on occupancy

All the adults who will be living on the premises should be party to the agreement; their names, details and signatures must be provided. This allows for the landlord to determine who may live on the property and serves as proof that these are the occupants that he/she has approved.

  1. Rent payment

If this is not on the lease, then living on the property is obviously free. Unless this is intended, the rent payable must be included in the agreement. In addition, details regarding the amount, date to be paid, acceptable payment methods, and repercussions of failing to meet these requirements, must be included.

  1. Termination of lease

The terms that warrant a lease to be terminated must be included in the agreement.

  1. Pets

A landlord cannot just assume that a tenant will not have pets. If pets are allowed, descriptive limitations and restrictions must be included as well.

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)

CAN TRUSTEES BAN YOUR PET IN A SECTIONAL TITLE SCHEME?

Problems around the ownership of pets are common amongst owners of sectional title properties, but while laws may be imposed by the trustees of the homeowners’ associations, the requirement for a reasonable approach is entrenched in the very laws which govern how a sectional title scheme should be managed.

Where the trustees have reasonably, after following due process and considering all relevant factors, withdrawn their consent to keep a pet, the owner concerned is then not entitled to continue keeping that pet in the scheme.

This is according to the Prescribed conduct rule 1 in Annexure 9 of the Sectional Titles Regulations which deals with the keeping of pets, including reptiles or birds.

It states:

  1. “An owner or occupier of a section shall not, without the consent in writing of the trustees, which approval may not unreasonably be withheld, keep any animal, reptile or bird in a section or on the common property.
  2. When granting such approval, the trustees may prescribe any reasonable condition.”

The phrases, “may not unreasonably” and “may prescribe any reasonable”, clearly seek to assist in the creation of harmony amongst a community living side by side in a sectional title development.

These regulations exist to protect the pet owner from unreasonably strict rules, and equally, they must confer on the other owners the right to a nuisance-free and peaceful environment. This means that both parties need to consider each other’s needs.

This consideration, in granting or refusing consent, will be central to inquiry: will it unreasonably interfere with other’s rights to use and enjoy their units; and which conditions would be appropriate in these circumstances to ensure that the risk of nuisance is reduced to a reasonable level?

For this reason, owners or occupiers can only keep pets in a section or on any part of the common property with the written consent of the trustees. However, the trustees cannot unreasonably withhold that permission. An absolute prohibition to keep a pet could be considered unreasonable and if consent to keep a pet is unreasonably withheld, the owner can take the matter to court.

The trustees must furthermore, base their decision on the facts and circumstances of the particular case. The decision to either grant or refuse consent should be recorded in the minutes of the trustee’s meeting, giving reasons that illustrate they have applied their minds to the particular set of facts.

An example of a court case which arose from a dispute regarding permission to keep a pet in a sectional title development was Body Corporate of The Laguna Ridge Scheme No 152/1987 v Dorse 1999 (2) SA 512 (D), in which it was held that the trustees are obliged to individually consider each request for permission to keep a pet, and to base their decision on the facts and circumstances of each particular case.

A further extract from this case pointed out that trustees are not entitled to refuse an application on the basis that they are afraid of creating a precedent. The trustees were, in this case, found to have been grossly unreasonable and have failed to apply their minds when they refused the Applicant permission to keep a small dog.

The question of the reasonableness of the actions of the trustees, in granting or withholding permission and setting conditions, will turn on the nature of the pet concerned and the circumstances of the scheme. In dealing with any application for permission to keep a pet, the trustees should consider what type of pet it is, and whether there are already other similar pets at the scheme.

It is unlikely that any action by the trustees to remove a ‘companion animal’ or ‘service animal’, such as a guide dog owned by a blind or partially sighted owner, would be held to be reasonable in the absence of a clear nuisance caused by the animal. The fact that a person sometimes forms an extremely strong emotional tie with their pet could also be an important consideration when the trustees decide whether or not to grant permission.

The trustees are not, however, powerless in situations where the conditions of permission to keep a pet are not being met. The trustees can withdraw permission if it is reasonable to do so. Examples include if the pet is causing a nuisance to other owners or occupiers (e.g. barking persistently), or the pet is considered dangerous to other owners or occupiers.

Where the trustees have reasonably, after following due process, withdrawn their consent to keep a pet, the owner concerned is then not entitled to continue keeping that pet in the scheme. However, the enforcement of this could be tricky for the trustees. The body corporate is not entitled to forcibly remove a pet from an owner’s possession. This can only be achieved by a court order, if – for example – there are too many dogs being kept in an inadequate space, the trustees can get the assistance from the local SPCA who can be contacted to come to the scheme to do an inspection in loco. If it is justified, they will implement the necessary legal steps to have the dogs removed.

Careful consideration and the application of the principles as set out in the rules of the scheme and the above-mentioned regulations will lead not only to peaceful co-existence, but also healthy growth in property values for the developments implementing such approach. A harmonious board of trustees results in a happy community, which in turn will ensure a good name for any development.

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:

TITLE DEEDS WHEN BUYING OR SELLING PROPERTY

If you’re planning to buy a new property, you’ll need to get the title deed transferred into your name to prove that you’re the owner of the property. You’ll need the assistance of a lawyer specialising in property transfers (also known as a conveyancer) to help you transfer the title deed into your name.

You’ll only become the owner of the property when the Registrar of Deeds signs the transfer. After it’s been signed, a copy of the title deed is kept at the Deeds Office closest to you.

How long does it take? 

A search may take 30 to 60 minutes. In some of the larger offices, the copy of a deed is posted or it must be collected after a certain period of time.

To obtain a copy of a deed or document from a deeds registry, you must:

  • Go to any deeds office (deeds registries may not give out information acting on a letter or a telephone call).
  • Go to the information desk, where an official will help you complete a prescribed form and explain the procedure.
  • Request a data typist to do a search on the property, pay the required fee at the cashier’s office and take the receipt back to the official at the information desk.
  • The receipt number will be allocated to your copy of title.

Fortunately, a conveyancer will help you with the process so that you don’t have to worry about all the paperwork yourself. You should contact your legal advisor to find out more.

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:

Western Cape Government, Title Deeds: Proof of Property Ownership, https://www.westerncape.gov.za

The Department of Rural Development and Land Reform, http://www.dla.gov.za/

DAMAGE TO PROPERTY

What happens when your property has been purposefully damaged, especially during an altercation? 

Uber car torching

During the road closures by meter taxis in Johannesburg on October 27 2017, two Uber drivers’ cars were set alight. A total of thirty meter taxi drivers were arrested for traffic disruption on the R21 and R24 highways of Johannesburg, and further investigations were underway as to determine how the cars were torched during the protest. With the meter taxi drivers being responsible for the flames, and assaulting an Uber passenger before leaving with her belongings. There have been ongoing violent feuds between Uber, meter taxis and taxi drivers, and in one instance, an Uber passenger was stabbed in the face, allegedly by a taxi driver. Two cars, believed to be Uber vehicles, were petrol-bombed earlier in September.

Malicious damage to property

Damaging property belonging to someone else is common – someone’s car door could fling to bump yours, the neighbour’s son may swing a cricket ball towards your kitchen window. These are mistakes which don’t normally require the assistance of authorities. Malicious damage to property is the intentional and unlawful vandalization of property or belongings of another person. As a criminal offence in South Africa, damage to property extends over to the physical harm of pets, and the vandalization of cars, furniture and other tangible items which can cause financial setbacks.

Suing for malicious damage for property follows reporting the incident as soon as possible. It is advised to keep records, such as photographs, names of witnesses, time of incident, and most importantly, financial records of repairing or replacing said property or belongings. It is important to note that in cases where property is damaged in an act of self-defence, or protecting property, the claim for malicious damage to property will not be a successful one.

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:

Criminal Procedure Act 51 of 1977. (1977). [ebook] p.194. Available at: http://www.justice.gov.za/legislation/acts/1977-051.pdf [Accessed 31 Oct. 2017].

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