“I would just like to pass on my appreciation for the time and effort you and your staff put in to my purchase. Thank you for the advice you gave me and for your excellent communication in this matter.
Kudos to you and your team at Da Costa for your professionalism. The best I have ever encountered.”

Most banks do not allow the transferring attorney and the bond attorney to be the same firm.  So we are very pleased to announce that Nedbank has selected Da Costa Incorporated to pilot a project whereby they will allow us to handle the bond and transfer process simultaneously.

This means that we will be able to improve on our great track record for turnaround times and client service, as this means buyers won’t have to provide documents twice or attend two meetings to sign documents relating to one transaction.

Nedbank is also running an exciting Affordable Campaign.  If you earn less than R24 300 per month (jointly or on your own) and the purchase price for the property is less than R780 000, Nedbank will waive the initiation fee of around R6 000. There are also some additional offerings to buyers who fall within this category. To find out more about this,
please contact the bond originator you usually deal with or one of the consultants at Nedbank directly.

If you have any queries please don’t hesitate to contact Annabelle da Costa.

For all home owners

If you’re not selling your property, new property legislation usually passes unnoticed. You know that when the time comes, your conveyancing attorney will be up to speed on the latest requirements.

But the “geyser law” matters to us all. As from 29 December 2017, every geyser which has been installed, repaired, maintained or replaced after this date needs a compliance certificate from a registered plumber.

The reason this matters is simple: if you don’t have a compliance certificate, and your geyser bursts, your insurance company is entitled to repudiate your claim. This law1 was passed in December 2017 and, as it’s new legislation, we’ve requested clarity on certain details. But right now, we advise that if your geyser was installed, repaired, replaced or maintained in 2018 (or later), then you need a compliance certificate.

When it comes to buying and selling property, the new law does not specifically state that a seller has to provide a compliance but if one is not ceded by a seller to the buyer (if same was obtained due to work being undertaken to the installation in 2018) then there should at least be a warranty that a seller has not tampered with the installation from January 2018 should be arranged.

If you don’t have a valid geyser compliance certificate in place and your geyser was worked on in 2018 or later, and something goes wrong, your insurance claim may be rejected.

If you’re buying or selling property, we recommend one of two options to deal with the legislation, that you can negotiate as part of the terms of your sale agreement.

If you have any queries on this, or other property legislation, please don’t hesitate to contact me.

1 The “geyser law” (SANS 10254 edition 4.1) was gazetted on 29 December 2017. In terms of the Standards Act 30 of 1982 and Act 8 of 2008, South African National Standards (SANS) are laws gazetted to standardise building requirements.

Most of us have been ignoring the “Alien Plant Law”, but we can’t do it anymore. Last year, the first home-owner was fined for breaking the law, and this was only the beginning.

The National Environmental Management Biodiversity Act was legislated in 2004, and the Regulations and the Alien and Invasive Species Lists were finally published in 2014. And with that, the National Environmental Management Biodiversity Act suddenly had teeth.

Home owners who don’t take heed of these laws are at risk of being fined, and in the Ethekwini Municipality, officials are already holding owners to account.

What’s the fuss about?

Alien fauna and flora place a heavy burden on our local eco-systems, and this law is designed to help address this problem. There are 4 different classifications, and the action you need to take is laid out in these categories.

Category 1a: Prohibited Listed Invasive Species

You need to take immediate steps to eradicate plants in this category. If you’re caught with these species on your property, you may be liable for a fine – which is what happened to Granada Home Builders in 2017.

Category 1b: Prohibited Listed Invasive Species

These are allowed only if you control these in accordance with the law.

Category 2 Prohibited Listed Invasive Species

Plants in this category require a permit and are subject to restrictions.

Category 3 are Listed Invasive Species that are exempted.

To complicate matters, the various categories differ by type of property and by province, but you can find the full list of Alien and Invasive Species on the Department of Environmental Affairs website www.environment.gov.za.

Take Action

You can’t ignore this legislation any longer, particularly if you are selling your property. Right now, industry is, for the most part, inserting a clause in the Sale Agreement to state that the Seller is not aware of any listed invasive species and the Purchaser accepts the property as is. But this does not comply with the law.

The law clearly states that if you sell a property which has an alien invasive with a permit, the new owner must apply for a permit. *

It also states that the Seller must inform the Buyer, in writing, of the presence of listed invasive species on that property – before the sale agreement is concluded. **

So both buyers and sellers need to be aware of any alien invasive species on the property and take action.

We recommend that both parties arrange for an expert to inspect the property and provide a formal report. If you need any assistance with this, please feel free to contact us.

* See: https://www.sanbi.org/documents/national-environmental-management-biodiversity-act-no-10-of-2004/ for the act
** See: https://www.sanbi.org/documents/national-environmental-management-biodiversity-act-no-10-of-2004/ for the act

I felt the need to write this newsletter as we regularly experience issues whereby we receive a Sale Agreement for a Sectional Title Unit and there is an exclusive use area referred to in that Agreement but the owner is not the registered owner thereof.

As you may know, an exclusive use area (EUA) could be allocated in 2 ways that is,  in terms of Section 27 of the Sectional Titles Act or in terms of Section 27A of the same Act.

If an EUA is allocated in terms of Section 27, it means that it has been delineated on the sectional plan and the holder thereof has his/her own title deed that has been registered in the deeds office to reflect ownership. This EUA can then be ceded/sold to anyone else as long as they are the owner of a section in that scheme.

If an EUA is allocated in terms of Section 27A, it means that it has been allocated to the unit (not to the unit owner) in terms of the Management Rules. This cannot be sold or ceded but goes with the Unit, when it is sold. There is no separate registered title. With the new Sectional Scheme Management Act, 2011 (which came into existence in October 2016), Section 27A has been repealed by this Act, however the concept is the same.

If the EUA is not allocated in either of the above ways, it does not legally “belong” to the owner and he/she actually has no legal rights thereto.

What we find is that sellers incorrectly inform the Agents as the Seller assumes that since they have been given the use of a parking, for example, it is theirs and can be sold – not realising the technicalities thereof.  Please can you ensure that you check with the managing agents and do a search to see if the EUA is allocated in terms of the rules, in terms of a separate title or is actually even “owned” by the seller? If it is not, please do not insert it into the Agreement as this will be picked up by us or the conveyancer concerned and you will need to delete it from the Agreement. This could crash your sale as the buyer would have been told by you that they will be getting an EUA as part of the deal.

We do note that some of the schemes are not correctly run as the EUA has not been correctly allocated by the body corporate (legally) but rather people are just allowed to use them. Your buyer will not have any rights if the body corporate suddenly realises this and tries to reallocate them, as has happened before in one of our matters.

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

If you are approached by someone to sell a property which is owned by a person who has passed away, please remember the following:

  1. You need to deal with the Representative/Executor of the deceased’s estate who has been appointed by the Master of the High Court and who is authorized to act on behalf of the deceased in terms of a Letter of Authority/Executorship. If they do not have this “Letter”, they may not sign your sale agreement;
  2. You need to cite the Seller as “the Executor in the Estate Late xxxx, acting in terms of letters of Authority/Executorship No. xxx/xxx”. If there is also a surviving spouse or any other parties cited on the title deed as registered co-owner then you need to cite that person as well and they need to also sign the sale agreement;
  3. You need to insert into the special conditions that “It is recorded that the Master of the High Court is required to consent to/approve the sale. Should the Master refuse to approve the sale, this Agreement shall lapse and be of no further force or effect” alternatively one could say that “the Agreement is subject to the Master’s consent” but we try and avoid using suspensive conditions if possible;
  4. Generally the Master is happy for properties to be sold as long as the asset is being sold for it’s correct value and all the heirs consent. Please make sure, before you take a mandate or offer, that the heirs are “on board” with the transaction as they will have to sign a consent during the process which gets lodged with the Master when we ask him to endorse our Power of Attorney to Pass Transfer. The heirs will have been appointed in terms of the will or if there is no will, in terms of the laws of intestate succession.
  5. One does not need to wait for the deceased estate to be finally administered and wound up before the property can be sold.  If the representative/Executor and heirs are in agreement the property can be sold and transferred as soon as the letters of Authority/Executorship is issued.

If you are approached to sell a property by someone who has just inherited it, please note the following:

  1. Please check that the property has already been transferredinto their name;
  2. If it is not, please check with the attorneys handling theadministration of the deceased’s estate, when it is going to be transferred into their name. An heir will only be “given” the property once the Liquidation and Distribution Account has been approved by the Master and account has lain open for inspection free of objection for 21 days. We often find heirs get ahead of themselves and the transfer into their name is still months away;
  3. A simultaneous transfer from the estate to the heir and from the heir to your buyer is permissible.  You would cite the heir as the seller in your agreement– however please make a note in the Agreement to cover the parties for a delay in the Estate transferring the property to the heir. For further assistance on the necessary clause, please feel free to contact us.

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

We are often asked by Sellers if they have to continue servicing their bond once they have signed a Sale Agreement to sell their property over which the bank has a bond registered.  The simple and definite answer is YES. You are responsible for paying the bank the monthly instalments until date of registration.

On transfer, the Conveyancers will arrange for your bond to be settled with the bank. This is done by means of a guarantee being issued during the process which then pays out on transfer. At the same time, the bank releases its security and cancels the bond over your property.

You may notice that the bond settlement amount is slightly higher than you anticipated. This is because the bank issues settlement figures at the beginning of the transfer and is therefore calculated provisionally in advance as we do not know when exactly the transfer will register and the bond will be settled. Guarantees are issued thereon. These figures will include your 90 day notice penalty and any other additions the bank make to the figures to ensure that if you default on paying there is sufficient to cover the shortfall.

Approximately 2 weeks after transfer the bank will reconcile your account and refund you any overpayment (which could include payments made by you since the issue of the figures and a pro-rata reduction in the penalty amount).
 
If you have any queries please don’t hesitate to contact us.

WHAT IT MEANS FOR PROPERTY TRANSACTIONS

We are relieved to see that the transfer duty tables have remained unchanged in this year’s 2018 Budget Speech however VAT will be increased from 14% to 15% as from 1 April 2018.

What does this mean for property transactions:

  1. Bond and Transfer fees – If you are purchasing a property and/or registering a bond, the transfer and bond costs (payable to the Conveyancers and other VAT registered vendors) will increase slightly for matters which will register on or after 1 April 2018 as a Conveyancer is only permitted to take their fees (although collected by way a proforma account ahead of time) on transfer.  In the transition phase from now to 1 April, VAT at 15% may need to be paid if the transfer is scheduled to register after 1 April. By the same token, this will apply to all costs/disbursements payable which are subject to VAT.  To get some perspective on the effect of the adjustment, on fees of R20 000, the VAT will increase by R200. Please note VAT on the fees will go up, not the actual attorney fees.
  2. Agent’s commission when you sell – if you are selling your property and are paying estate agent’s commission, the percentage of VAT which will affect you will depend on when the actual invoice is raised by the Agency, against their books. Commission is usually payable on transfer but often an Agency will raise their invoice prior to this date but payment will only be made then.
  3. Purchasing in a residential development, from a developer, for example – if you purchase a residential property (i.e signed the Sale Agreement) after 1 April 2018, which is subject to VAT (and not transfer duty), you will pay 15% VAT. If the Agreement is signed prior to this date the VAT shall remain unchanged as the date of signature of the agreement will determine the VAT rate.  This is specifically dealt with in Section 67A of the VAT Act 2001.
  4. Commercial property subject to VAT – The Act is silent commercial transactions per se but Section 67 allows there to be a variation in the contract price if VAT is increased, unless otherwise stipulated in the Agreement, and the Sellers shall be entitled to recover this increase. Accordingly, the date of registration for commercial contracts is important.

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

If you purchased a property and you obtained bond finance from a Bank, in order to pay for some or all of the property, the Title Deed would have been retained by the Bank for safe keeping, as security against the loan.  After transfer you would accordingly have not received the originals from the Conveyancers – they could however send you a copy for your records.

However, if you paid “cash” for the property, about a month to 6 weeks after transfer, the original Title Deeds should have been sent to you for safe keeping. These documents are very important so what happens if you lose them?

Thankfully it’s not catastrophic. If you have misplaced the deed and the deed has not been pledged or ceded to any third party, you can instruct us to make an Application to the Deeds Office for what is called a “VA” copy also known as a certified copy of the deed.  This is not a very costly exercise.

If you are selling your property, this application, in most Deeds Offices, may be lodged at the same time as the transfer documents however some Deeds Offices require the application to be made BEFORE you lodge your transfer documents. Your Conveyancer (or us) will know what to do.

If you need any assistance in this regard, please feel free to contact us.   

Our firm is a firm that specialises in conveyancing transactions and property law.

If prospective Purchasers have not been adequately informed regarding the costs related to a property transaction, these can be can be unexpected, daunting and in extreme cases can jeopardise the sale. Buyers must be given adequate information regarding the costs at the outset of the transaction which will enable them to make provisions for the related costs and confirm the affordability of the entire transaction.  Very frequently we have clients demanding a discount on the fees as they have not been fully educated by the Agent on all the costs.
 
The general/standard costs associatedwith PURCHASING a property are the following;

  1. Transferring Attorney’s Fees:-   This fee is calculated according to the Purchase Price and is usually charged according to a guideline tariff issued by the Law Society of South Africa. Attorneys are not obliged to follow this tariff but most do as it is a fair and reasonable charge for the work that goes into a transaction.
  2. Transfer Duty:-  This is a tax levied by and payable to SARS on all immovable property transactions with a purchase price above R900 000.00 Transfer duty is calculated on a sliding scale calculation as follows:
    R0 to R900 000 = 0%;
    R900 000 to R1 250 000 = 3%  of the value over R900 000;
    R1 250 000 to R1 750 000 million = R10 500 plus 6%  of the value over R1 250 000;
    R1 750 000 to R2 250 000 = R40 500 plus 8% of the value over R1 750 000;
    R2 250 000 to R10 million = R80 500 plus 11% of the value over R2 250 000;
    R10 million upwards = R933 000 plus 13% of the value over R10 million.
  3. If the Seller is a VAT vendor then the rule of thumb is that VAT at 14% and not transfer duty would be payable.  However, residential properties are ordinarily exempt from VAT (which means that transfer duty would then be payable) unless the Seller claimed VAT when he purchased the property in which event VAT would have to be dealt with in the purchase price. There are situations where one can zero rate the transaction i.e. VAT is payable at 0% but we will not go into this for the purposes of this newsletter but you are welcome to contact us for assistance.
  4. Deeds Office Fee –This is an administrative fee charged by the Deeds Office and is calculated according to the purchase price of the property but currently does not exceed R5500.
  5. Municipal Clearance Certificates:- Conveyancers are required to obtain a rates clearance certificate which is lodged in the Deeds Office.  The cost thereof will depend on which Municipal area the property falls in. Depending on the Municpality but usually it will require payment for the certificate together with payment of all arrear, current and a provision for advance rates (usually around 3 months in advance), electricity, refuse and possibly water. Some Municipalities also require a water rates certificate to be obtained.
  6. Levy Clearance certificates and Consents:- In the case of a Sectional property a levy clearance certificate is also required, together with the payment of advance levies, and charges for the issuing of the certificate. If the property is within an estate then advance HOA levies, levy stabilisation funds, club joining fees and even debentures may be payable.
  7. Sundry Charges: – the Conveyancers may charge for postages and petties, online electronic instruction costs and a fee for complying with the Financial Intelligence Centre Act but all of these usually don’t exceed a total of R4 000.00.
  8. Bond Registration Costs: – If the Purchaser is obtaining a bond to pay for some or all of the Purchase Price, then separate provisions have to be made for the bond registration attorney’s fee (as well as disbursements) over and above the transfer costs. The bond attorney’s costs and the Deeds Office fee for the registration thereof is also calculated on the bond amount to be registered, and is usually calculated according to the Law Society guideline tariff.
  9. Bank’s Initiation Fee – this is a fee charged by the bank to raise the bond. Depending on the bank, it is usually charged upfront, and is included in the bond registration attorney’s account. However it may, subject the bank’s agreement, be included in the bond but we do not recommend this, as the fee will, in effect attract interest for the term of the loan.

Note. A foreigner purchasing property and requiring bond finance, will probably only be able to obtain 50% of the purchase price. So 50% deposit must be available in order to secure the full purchase price.

An important note to mention is that not all provinces have the same practices when it comes to whom pays for what. In JHB it appears to be the custom that the Seller pays the certificate fees.

Although the Purchaser is predominantly liable for the costs of the transfer, THE SELLER has to also provide for certain costs such as:

  1. Bond cancellation costs – If there is a bond registered over the property, the balance owing to the bank will be deducted from the Purchase Price on transfer. The Attorneys who are appointed by the bank to handle this will also charge a fee of between R3 000 and R5 000, which includes a Deeds Office fee and the cost will depend on how many bonds have been registered over the property.  A cancellation Attorney has to attend to the cancellation of the bond in the Deeds Office even if the bond has been paid off;It is important to note that if there is a bond registered over the property, the banks require 90 days’ notice to cancel the bond.  So, as soon as the decision is made to sell the property, the banks must be advised, and this advice must be renewed every 90 days.
  2. Agent’s commission – this is negotiated between the Seller and the Agent when a mandate to sell the Property is given;
  3. Compliance certificates – (if applicable and as per the sale agreement) the Seller will be obliged to provide an electrical compliance certificate, an entomologist certificate (if the property is in a coastal area – stating that the property is free from wood destroying insects), a gas compliance certificate (if the property is sold with a gas stove or geyser installed), and an electric fence compliance (if the freehold property has an electric fence installed or a sectional title unit where the body corporate is not responsible for the fence). In Cape Town, a plumbing certificate is also required. The Agents or Conveyancers can arrange these on the Seller’s behalf.  The cost of these inspections (only) will usually be between R550 and R950 each. Any remedial work would be for the Seller’s account.
  4. Outstanding rates and levies –The Seller will be liable for arrear and pro-rata rates, water, electricity, refuse, levies etc up to date of registration of transfer.
  5. Capital Gains Tax – Last but not least, Sellers seem to forget that CGT is payable to SARS if there if there has been any gain or profit made on the property.  This amount WILL NOT be deducted from the proceeds and must be attended to by an accountant after transfer and as part of the Seller’s income tax return. The amount of CGT would also depend whether the Seller is  an individual, Company/CC or Trust and further, if he is an individual, whether it is his primary residence or not. Also,  if the Seller is a Trust, whether the funds are being retained in the Trust or distributed to the beneficiaries.  For the purpose of this article we will not go into these calculations but please ensure that you consult your accountant or auditor to calculate this amount on your behalf.

For a detailed quote or if you have any further queries please don’t hesitate to contact us.

In January 2017 I sent the first of which is going to be a series of emails with some useful pointers to help reduce the issues on your transfers. Please take the time to read these newsletters, I really do believe that they will assist you.

1. DUE DATES AND DATE OF TRANSFER

Please don’t EVER leave dates off an Agreement. It can amount to the contract being declared void due to missing material terms, required to make a contract.  At least put down a date which can later be changed, if necessary.

Often, agents put in the occupation date “to be negotiated”. This is problematic for a number of reasons. If you can’t determine a date, please then put “registration or a date to be negotiated” so that if the parties can’t agree on a date then you have the registration date to fall back on. I do suggest that a little extra time is spent on this to ascertain everyone’s plans and try to set a date for occupation. This can be changed by mutual consent at a later stage but at least it provides some certainty for everyone.

If one would like registration to take place around the date of occupation date (if it is possible of course) then please state next to the date of occupation or even in the special conditions “Occupation on X date. Conveyancers are instructed to register as close to this date as possible”.  If it is not possible register by this date then please bear in mind the Buyer will have to pay occupational rent, so ensure the rental amount is inserted.

We often have an occupation date set but nothing is said about registration. This means (unless everyone agrees otherwise – and they usually don’t agree) we have to register the transfer as and when we are ready to. This causes issues as it may not suit everyone. Let me give you an example. Occupation is set on 1 October but nothing is said about registration and the Conveyancers are ready for registration in August. The Seller wants the matter to register asap so they can cancel their bond, earn interest on the balance of the funds and stop paying rates and levies (if applicable) so keep putting pressure on the attorneys to register. The rental is reasonable but the Purchaser is not happy as his bond instalment is more than the rent PLUS he has to pay the rates and levies. In this case the Purchaser will be unhappy with this oversight.

This could also work the other way around, where the Seller doesn’t have a bond and is not wanting to pay rent so wants transfer to go through on occupation but the buyer has little or no bond being registered and wants to earn the rent until occupation so wants the transfer to go through asap. In this instance your Seller will be highly annoyed with you for not “looking after him” as he would say.

Another example of a situation which could arise is if a Seller’s expectations are that a transfer takes 3 – 4 months (maybe a friend who has had a bad experience has told him this) but the Buyer’s expectations are that it registers a lot quicker and makes his plans accordingly.  Seller therefore only plans to move in 3 months’ time but the transfer goes smoothly and the Conveyancers are ready in 2. The buyer is not happy to delay the transfer as they are renting and they have given notice and want to move in asap. The Seller is now very unhappy as they have nowhere to go. A conveyancer cannot intentionally delay a transfer without everyone’s consent so in this case your Seller would lose out and you can guarantee that Seller will never come back to you for future business.

The key is keeping both clients happy so that they come back to you (and us) so ironing out all these issues, right from the beginning is key.

2. SELLERS WHO HAVE A BOND OVER THEIR PROPERTY

Agents need to get into the habit of informing Sellers, who have a bond registered over their property, to notify the bank that they intend to sell. We often have requests by Sellers to delay the transfer as they have not given the 90 day notice required and don’t want to pay penalty interest to the bank.

When you start working with a Seller please inform him/her to give the bank notice asap as the bank requires 90 days’ notice to cancel a bond. This penalty amount comes down each month that the transfer does not register until finally after 3 months there is no penalty interest payable. For a clients whose bonds are new, this penalty amount can be quite a bit. For those with a small or old bond this may not be much and it may be better for them to proceed with transfer as normal as the money they will earn in the bank etc will be more than the small bit of penalty interest they would have to pay.

Our transfers usually take substantially less than 90 days so it is usually a bit late to inform the bank when a sale agreement is signed.

Sellers are not liable for anything if the sale does not go through but they do need to keep updating this notice every 3 months if no agreement has been signed within that time frame. When we receive the instruction and apply for cancellation figures our request for figures is notice to the bank ,so if your sellers need assistance with this, we are happy to request for the discharge figures and give the bank due notice on their behalf, ahead of an offer being presented.

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

When Da Costa Inc committed to building a classroom for Bridges of Hope, we were also committing to building a future for underprivileged children – so we needed the fastest and most practical solution.  27 children are depending on us to give them a chance at early education.

We are literally converting an old pigsty into a bright, happy classroom, and it’s taking some doing!  While the amazing Sharon Aurets who runs Bridges of Hope for Children put her practical skills to work tiling the floor, while Annabelle kept little hands and feet out of the paint.

“We were extremely impressed with the professionalism and the short turnaround in which you were able to obtain the information that was needed for our bond to be transferred. I would recommend Da Costa Inc. to my family and  friends.”

“Many, many thanks for the excellent and swift service we received. I am especially impressed with the regular feedback that you and your team sent to keep us in the loop.”

“Da Costa Inc always goes the extra mile.”

“Well done, you are amazing! Love working with you and highly recommend you.”

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“Brilliant… your service and team are awesome!”

“My experience with Da Costa Inc has been super fantastic.”