Property Practitioners Act Disclosure Forms

Mandatory Disclosure Form

In terms of the Property Practitioners Act, 2019, every estate agent must obtain a property disclosure form from the seller/lessor before accepting a mandate to sell or lease a property.

Download your copy of the Mandatory Property Disclosure Form

Private Sales

If you are considering a private sale, the mandatory disclosure form is not required by law, but we still recommend that you include one, as it protects both the buyer and the seller in case of any dispute about any defects in the property.

We have created a disclosure form specifically for private sales, and recommend you include it in your Sale Agreement

Download your disclosure form for private sales

Voetstoets

Time and time again we experience issues regarding defects where a dispute arises about the state of a property and whether a defect was old or new.

For the sake of clarity, when a voestoots clause appears in an Agreement of Sale and Purchase, the property is sold in the condition that is in, with both latent (hidden) and patent (obvious) defects.

A Seller may rely on this clause unless there are some hidden defects which he/she is aware of but failed to disclose in the Sale Agreement. Patent defects do not have to be pointed out as a Buyer warrants that he/she has inspected the property and there is an assumption that if one looked around, one would see the defect so there is no need to point it out.

Often clients believe that due to the Consumer Protection Act, one cannot sell a property voetstoots. In light of the fact that most Sellers are not selling in the ordinary course of their business, the Consumer Protection Act does not apply to the sale of their property. This means that the voetstoots clause may still be included in an Agreement of Sale and Purchase.

What does fall under the voetstoots clause however is the service agreement between the Seller and the Agent. In order to protect themselves most agencies obtain a declaration from the Seller as to the state of the property. Whilst this helps to clarify issues to some degree, it is still vitally important for the agent to inspect the property themselves and even to keep photographs thereof. Having evidence of the property or even just being familiar with the property would mean that when a Purchaser tries to claim that a defect is a new defect and therefore does not fall under the voetstoots clause there will be evidence to either confirm or deny this fact.

In most cases, it appears as though Sellers are very nonchalant when signing the declaration and this alone should not be relied on.

Taps, hot water, water pressure – please either check these or put a clause to say they are in working order.
Aircons & fans (incl remotes) – please put a clause that they are in working order otherwise make the Buyer actually turn it on.
Geysers – the electrical company doesn’t check that it works, they only check the connection. The same for an oven, etc. Please put in a clause that warrants they are in working order.

“Thank you so much. We were very happy with the service and I particularly want to commend you on the level of communication and updates throughout the process.”

“A big thanks for everything, it was an absolute pleasure dealing with you throughout the process.”

“I have never had such incredible service ever. I will definitely recommend you and your company for your professional services. You have gone above and beyond. It has been a pleasure doing business with you.”

If either the buyer or the seller in your property transaction is not a South African resident, there are certain essential element you need to consider.

This is an informational video for estate agents and is not intended as legal advice. Please contact us for legal advice for your specific instalment sale agreement if the buyer or the seller is not a South African resident

If you’re an estate agent in South Africa, this webinar is for you. Presented by Annabelle da Cosa of Da Costa Inc., specialists in property law.

This is an informational video for estate agents and is not intended as legal advice. Please contact us for legal advice for your specific sale agreement.

Annabelle gives you a detailed run-down of the key things you need to know about Instalment Sales and the complexities that could trip you up.

This is an informational video for estate agents and is not intended as legal advice. Please contact us for legal advice for your specific instalment sale agreement.

POPI stands for the “Protection of Personal Information”

The POPI Act (hereinafter referred to as “the Act”) was passed into law by Parliament in 2013 and was officially enforced on 1 July 2020. The Act gives effect to the constitutional right to privacy by safeguarding and regulating personal information held on servers or files and processed by responsible parties, (including but not limited to various players in the property industry), namely Estate Agents, Mortgage Originators, Banks, Insurers and Attorneys. Each role player has one year within which to ensure that their business practices are in line with the Act, failing which they will face serious consequences of their breach, whether it is intended or not.

The Act seeks to ensure that personal information relating to individuals and juristic entities, (hereinafter referred to as “data subjects”), is dealt with in a responsible way so as to avoid same becoming available to third parties who are not entitled thereto without their consent. We suggest to make sure that your Sale or Lease Agreement contains a clause whereby the data subjects consent to you collecting, storing and processing their personal information, (for example to Bank Consultants, Mortgage Originators), in a way that benefits them and also allows the sharing of such information between yourselves, the Conveyancers and originators. An example of such clause would be as follows:-

“The parties herein hereby consent, as required under the Protection of Personal Information Act No. 4 of 2013 (“POPI”), to the Agent, Conveyancer and Mortgage Originator (if applicable) gathering our personal information. The Estate Agency, its Agents and supporting staff will have access to our personal information which we have given to them for the express purpose of concluding a binding Sale Agreement and transfer of immovable property.

The parties further consent to the sharing of our information between the Estate Agency, Conveyancers and Mortgage Originator (if applicable) so that the provisions of the Financial Intelligence Centre Act may be complied with by the respective organisations.”

There are eight “processing conditions” which are set out by the Act which must be followed when information is collected, stored, handed out, used or deleted; namely:-

1. Accountability:

All businesses and private persons need to be responsible, accountable and comply with the conditions as set out under the Act.

2. Processing limitation:

Agents must only request data subjects to supply them with the personal information needed in order to conclude a binding sale agreement (i.e being the original purpose for which the information was requested in the first place).

3. Purpose specification:

Personal information must be collected for a specific and lawful purpose related to, for example, the conclusion of a binding sale agreement, and data subjects must be aware of same. Estate Agencies may not retain information for longer than necessary, (being 5 years unless the Property Practitioner’s Act comes into existence which may require 10 years), whereafter it must be deleted or destroyed depending on whether it is in digital form or a hard copy (deletion off data base and paper shredding).

4. Further processing limitation:

Remember that any further use and processing of information, (for example to Banks and Attorneys), must be in line with the original purpose of such information being collected and it’s important to obtain a person’s consent thereto.

5. Information quality:

Always ensure that personal information obtained from a person is accurate, not misleading and updated where necessary.

6. Openness:

Estate agencies must ensure that data subjects are aware why certain personal information is being collected, the name and address of the Agency, the right of access to and the right to rectify information collected.

7. Security safeguards:

Estate agencies must treat information supplied to them by data subjects with the highest degree of privacy and care. It is imperative to ensure that digital customer relations management systems adhere to the regulations set out under the Act so it is important to partner with a service provider who will ensure that personal information is identified, processed in line with the Act and that the required consent is obtained on databases. Don’t leave data subjects personal information lying on a desk or stored on a laptop left visible in a car where it could be the target of a would-be-thief. Have your computers set up whereby they automatically go into “sleep mode” if you are away from your computer and not actively working thereon for a certain period of time. Make sure that passwords to computers are kept safe and secure. Make sure that safeguards are regularly updated in the event of new risks or flaws in previously implemented safeguards. If there happens to be a security breach, it’s important that the Agency informs the Information Regulator and the data subject whose personal information has been compromised.

8. Data subject participation:

A data subject, (who has provided adequate proof of identity), and who has provided an Estate Agency with personal information may request such Agency to furnish them with confirmation that the Agency holds their information as well as the particulars of such information and details of third parties who have also had access to such information. A data subject may also request an Agency to destroy (after 5 years) or update personal information.

Marketing

Marketing is a critical aspect of every Estate Agents and Agencies tool-kit. The Act not only stipulates that permission is always required for the distribution of a data subjects’ personal information but data subjects are also in control of outside information which they receive! The Act impacts the way in which Estate Agents can market homes. Estate Agencies and Agents are not allowed to send potential data subjects any direct marketing materials unless the data subject is already an existing client on their database, (however the data subject must have the option to unsubscribe should he or she wish to do so otherwise they will be in contravention of the Act), or if the potential client consents to receiving various marketing material.

A breach of the Act resulting in the unlawful sharing of information has far-reaching consequences, depending on the severity. A data subject can report a matter to the Information Regulator, (being a committee appointed in terms of the Act), and if after investigation the Regulator finds that an abuse or compromise of personal information has occurred it can result in the Information Regulator issuing a fine of up to a maximum amount of R10 million or imprisonment of up to 10 years.

Defences

Defences to the defaulting party are limited by the Act. The Defendant would need to prove that:-

The Regulator exempted them;
Compliance was not reasonably practical;
The Plaintiff consented or was at fault themselves; or
The breach was an act of God.

If you have any queries please contact Annabelle

“Beyond excellence and everything just went on smoothly. I will certainly recommend Da Costa Attorneys. We are truly grateful for your service and kindness.”

Welcome back to all estate agents. Here are all the regulations that apply to during this lockdown period.

Lockdown Regulations Level 3

If you are a developer who wishes to open a sectional title scheme on a property you own or are about to own here are the basic steps:

Purchase your piece of land. You don’t have to have taken transfer of this land before getting things started, as long as you know you will at some stage as the costs to undertake a development can be substantial.
Please make sure the land you buy is zoned correctly to cater for the number of units you want to build;
Consult an Architect to draw the plans for the development. Before the units can be sold “off plan” the Architect needs to also provide a floor plan and site plan;
Draw up a schedule of finishes which we need to attach to your sale agreements (if you intend to sell the units before they have been built – transfer of the unit will obviously only take place when the unit is complete);
Consult a Land Surveyor who will have to draw up the sectional title plans once the building structure has been erected. The LS fees can be high so please consult this person at the beginning of your process. The LS will also guide you.
Sale of units – at any stage, once you have the Sale Agreement, your floor plan, site plan and schedule of finishes, you may launch this development and sell to end users. A conveyancer will need to draw up the Sale Agreement.
Right of extension – you may decide you want to phase the building of the development. If so, you will need to advise both your Conveyancer (so they can insert the relevant clause in the Agreement) and the Land Surveyor (who needs to cater for this in the sectional plan). You will need to have a concept diagram drawn for the future phases, you are not permitted to decide on what you will build at a later stage, your concept diagram will have to be submitted to the Deeds Office when you initially open the register, even though the structures may be built later.
Body Corporate Rules – you may decide to use the statutory rules which are contained in the Regulations of the Sectional Titles Schemes Management Act. If you want to customise your rules, the Conveyancers will need to draft these and these must be submitted to the Ombuds Council for approval BEFORE you are able to transfer the first units.
Exclusive Use Areas – these could be parkings, carports, gardens etc. You can either allocate exclusive use areas in terms of the body corporate rules or they can appear on the sectional plan. Please inform the Conveyancers if you wish to allocate them in terms of the rules and the LS if you wish to put them on the ST plan.
Once you have erected all the walls of the buildings (you don’t need to have finished the entire development or even have the roof on), you may contact the LS to draft the Sectional Title Plans. Once the LS has drafted these, they will be submitted to the Surveyor General for approval. That can take between 6 – 12 weeks, depending on the turnaround time of the SG at the time of submission.
Once the plans have been released, the Conveyancers can prepare their documents in order to open the Sectional Title Register.
It is possible to open the register at the same time that the first transfer is registered. Please speak to the Conveyancer about this to discuss which would be best.
The Body Corporate is formed on the first transfer of a unit. You will then have 60 days to call a meeting with the owners who have just taken transfer and discuss levies etc. Should you fail to do this, it will be a criminal offence.

There many more intricacies involved in Sectional Title Developments, and this is just a basic guideline. Please feel free to give us a call to discuss your development.

“Thank you so much for the exceptional service that you and your office has provided me. Your dedication, efficiency and professionalism were excellent.”

“I’ve always heard horror stories from friends with regards to conveyancers and I was prepared for months of frustration and exasperation. To my delight, our journey together was nothing short of utter professionalism, razor-sharp efficiency and focused attention to detail. My days were hassle-free and any input needed was always tailored to my convenience.”

Has your client lost their Title Deeds?

Here is the new procedure for obtaining a certified (VA) copy

Last year we warned you of a change in the process of obtaining a copy (what is known as a VA copy) of a title deed which has been misplaced. The new process was pended for some months but as of 1 January 2020 we now have to follow this process, which has the potential to delay your transfer.

When you sell a property, please check with the Seller if they have a bond registered. If they don’t, please ask them if they have the original title deeds with them. If they have lost them, please immediately notify us so we can start this rather cumbersome process of obtaining a copy from the Deeds Office. The copy we have to lodge is not just the one we can get online, we have to make application and a certified copy is issued.

Here is the process which will need to be followed:

Your client will have to send us all the info regarding the property so that we can draft an Application in terms of Section 68(1) and Form JJJ;
The Deeds Office will generate a copy of the deed and attach the Notice of Intention and it will be laid for inspection at the Deeds Office;
We will then publish, in a newspaper circulating in the area, an advert advising that the Seller has lost the Title Deed and inform the public that he/she intends applying for a certified copy from the Deeds Office;
The general public must be given 2 weeks to object and only once this time period has elapsed then the Deeds Office can issue us with the certified copy. We are required to lodge a copy of the advert.
Currently, it can take some time to obtain the necessary VA or certified copy.

As you can see, this process can take up to a month to arrange so it is imperative to start the process when the transfer process begins, to avoid any delays. If you are aware that the Title Deeds have been lost, we suggest this is disclosed in the Sale Agreement, just in case this process does delay the transfer.

The cost of this process is between R3 500 and R4 300, with advertising costs.

If you have any queries please don’t hesitate to contact us.

“The service we received from you has been outstanding, and it has been an amazing experience to work with you. Thank you.”

We’re so proud of what we’ve helped make happen. A safe, cheerful place where small children can learn the kind of skills they’ll build on for their future. The Bridges of Hope for Children team have pulled out all the stops to make it happen, and today Annabelle visited with more donations and gift bags for all the children – only to find that the class of 27 has grown to 32. We’ll make a plan.

But our job isn’t done yet.

These children need more than a classroom because nourishing their minds is not enough. Each child needs a mid-morning snack and a healthy lunch before they go home at the end of their school day.

While we’re constructing the new classroom, 27 children need stimulation. Bridges of Hope have found a space for a make-shift classroom. Furnished with donated goods, it’s not ideal, but the kids are excited.

Most of them had never held a pencil, let alone a crayon, and none of them had ever seen a puzzle. But it didn’t take them long to discover how to use them. Little sponges soaking up everything around them.

It’s a bit chilly, but it’s fun, and they’re loving it.

Zoning of Property & Subdivisions

We regularly receive queries about Property zoning. Whilst we are not experts in the field of zoning, we have done some research and asked the experts – Land Surveyors.

There are 3 broad categories of zoning – residential, commercial and industrial.

1. Residential Property

There are several categories and restrictions on the buildings which can be constructed on the property. These have to comply with the coverage, floor area ratio and density. Generally, coverage is the maximum area of land on which one is permitted to build on the site, floor area ratio is the maximum floor area allowed under a roof and density is the number of dwellings permitted per hectare.

2. Commercial Zoning

There are various categories of zoning catering for business usage, which range from shopping centres to more specific business uses eg. office parks.

3. Industrial Zoning

There are several categories catering for different types of industrial usages eg. factories and warehouses.

When is Zoning or Rezoning Necessary?

If you want to change the usage of the property from a residential property either by erecting more units on it or changing its usage, then re-zoning would become necessary.

An example of rezoning would be when a small business at home has grown to the extent that the noise or traffic could upset neighbours. One would then need to apply for a rezoning to an appropriate usage category which would be stipulated in the Town Planning Scheme.

Consent Use and Rezoning

If one wishes to change the use of the property, this would be done by way of an application to the local Municipality. A person can attend to this themselves, but the process can become complicated and lengthy (it can take anywhere from a year to a few years if no objections, to finalise). It would therefore be strongly suggested that a person uses the services of a qualified Town Planner or Land Surveyor to assist. Your local Municipality will usually have a list of Town Planners and Land Surveyors that they work with and recommend, alternatively we can recommend.

There are usually two main kinds of applications:

1. Consent Rights

Here the applicant is applying to the local authority to grant consent to use the land in a certain way (other than what is permitted under its existing zoning). This can only be brought where the town planning scheme that governs the property states that it is possible to apply to the Council for such consent rights. A number of business operate under special consent rather than being rezoned. It is generally quicker and cheaper. One must note that special consent is not transferrable and permission must be requested if a new buyer purchases the property. This should be disclosed in the Sale Agreement.

If there is no option to apply for consent rights and the usage of the property is to be changed, then the property will need to be re-zoned.

2. Rezoning

Here is what needs to happen when one wants to rezone a property:

A detailed motivation report with plans is submitted to the local Municipality;
The application is advertised in a local newspaper and the Government Gazette calling for any objections to the rezoning;
The local town planning department then goes through a process of considering the application and any objections received thereto
The application is then referred to the council committee for the final approval or decline.

3. Subdivision

A subdivision is something completely different – this is when one has a large property and wants to divide the property into smaller erven or stands. One cannot subdivide if the subdivided portion ends up being less than the Council permits for that area.

In order to subdivide you would need to.

Employ the services of a land surveyor;
He/she will draw up the sub divisional layout plans and provide a detailed motivation which will be submitted to Council;
Once the Council approve the subdivision, the diagrams are lodged at the Surveyor General’s office for approval;
Once approval is obtained from the Surveyor General, a Conveyancer would assist in registration of the subdivision in the Deeds Office.

If you have any queries please contact Annabelle on 031 502 6902.