Contractual Matters

Agriculture is one of the most important sectors of the global economy, and it relies heavily on water resources for crop production. According to the Food and Agriculture Organization (FAO), agricultural water usage accounts for about 70% of the world’s freshwater withdrawals.

When selling a property with a tenant, the agent must disclose the tenant and lease agreement to the buyer to avoid disputes or the tenant becoming a squatter. The lease agreement takes precedence over the agreement of sale during its duration.

A Testament/Will is a document where a person states their last wishes and what must happen with their estate after their death. If a person dies without leaving a Will, his/her estate will be administered in terms of the “Intestate Succession Act”. This Act provides for rules by which assets are distributed to relatives.

In light of the recent development in Bwanya v Master of the High Court, opposite-sex life partners are now entitled to inherit in terms of the Intestate Succession Act, which was once a benefit exclusively awarded to partners in a same-sex life partnership.

In this case, Platinum Property, the Purchaser, being a company, entered into an agreement of sale with the Seller, being a 93-year-old lady. Platinum took this seller to Court to stop her from transferring the property to another second Purchaser and further to order her to sign their transfer documents. The main issue before the Court was the issue of repudiation and the manner in which the Conveyancer dealt with the transaction.

The action for division of property is well established in South African law. Every co-owner of property may insist on a partition of the property at any time. This may be done even in the case where there is a perpetual joint ownership agreement.

Contracts for the sale of immovable property will very often contain suspensive conditions. One of the most common types of suspensive conditions is bond approval. 

In our June newsletter, we looked at an interesting court decision handed down in 2020 by the Eastern Cape Division of the High Court of South Africa, related to the application of electronic signatures to offers to purchase land. Last year, the electronic signing of documents once again came under the spotlight in the case of Firstrand Bank Limited v Jacques Louis Briedenhann. Interestingly, this decision was also handed down by the Eastern Cape Division of the High Court, which appears to be making groundbreaking decisions in this regard.

The property professional plays a critical role in the process of buying and selling real estate. When ‘making the deal’, they must engage with the seller to collect information and documentation that will be needed throughout the process. At the time of taking the mandate, it is crucial that they clarify certain facts and obtain specific information and documentation in order to pre-empt any issues that may arise, thus saving time.

As we live in an online world, and because of the recent pandemic, electronic signatures are becoming more commonplace – and an increasing number of buyers and sellers are asking to sign their OTPs electronically.

There are instances where ownership of land is vested in a company. Typically, a company is registered, usually with one or two directors, and such company then takes transfer of the immovable property. The land is then held in the name of the legal entity (being the company), with the individuals or directors who intend to stay there holding shares in the company.

Legal fees are regulated by tariff guidelines, which are issued by the Rules Board in terms of the Legal Practice Act. Although these tariffs are guidelines, they are typically followed in the conveyancing industry. As a result, if fees are ever queried, they can usually be backed up by the regulations issued in the Government Gazette from time to time.

In 2017, the Government undertook to interrogate the Estate Agency Affairs Act and replace it with one it deemed more suitable. The result was the Property Practitioners Act (PPA), which came into effect on 1 February 2022. In this article, we’ll be touching on some of the highlights – or lowlights, depending on your point of view – of this new act.

South Africa’s law of contract provides several ways in which contracting parties can protect and enforce their contractual rights. The most essential principle of contract is party autonomy – parties to a contract are free to conclude what they have agreed to, and the courts have a duty to enforce this agreement as far as possible provided it is not against the law.

With cybercrime on the increase globally, the team at Snymans is increasingly aware of the importance of safeguarding both our clients and our business against cyber criminals when it comes to making and receiving electronic payments. In fact, phishing crimes have become such a cause for concern in South Africa that the Legal Practitioners’ Fidelity Fund has declared that it will not make good on insurance claims arising from these types of crimes.

The buyer and seller of a property are responsible for certain costs associated with the transfer process. Here’s a look at who’s liable for what.

It’s an unfortunate reality that mistakes do sometimes occur in deeds and documents during the transfer process. Fortunately, however, the Deeds Registries Act makes provision for mistakes of this nature to be rectified.

Recognition of customary marriages in South Africa has undergone several shifts over the years through the implementation of new legislation. This has impacted not only the legal status of the parties to a customary marriage but also their ownership of and rights to matrimonial property.

The introduction of the Legal Practice Act 28 of 2014 has led to several changes in the juridical space, including one related to non-litigious fees – fees charged by attorneys for services that do not constitute litigation and are not finalised in court.

In South Africa, the business and affairs of a company must be managed by its board of directors. As such, the board is responsible for the daily corporate and commercial affairs of the company.

Title deeds of cluster developments commonly contain a condition which states that alienation or transfer of a property by the owner is not allowed unless consent from the Homeowners Association (HOA) is provided. Usually inserted by the relevant local authority when approving the cluster development, this type of condition also confirms that all subsequent owners of the property automatically become members of the HOA.

The conveyancing process starts with a signed Offer to Purchase and ends with the property being registered in the Deeds Office. But, there are numerous steps that need to be completed in between. Here’s a look at how the process unfolds.

Often, a bond will be paid up before the owner of the property decides to sell it. Here’s a step-by-step look at what he or she can expect once they reach this impressive milestone.

When it comes to buying or selling a property, it helps to have a basic understanding of the many legal terms involved in the conveyancing process. Here’s a look at the 10 you’re likely to encounter most often, starting with conveyancing itself.

If a property owner would like to establish a township, the below procedure can give guidance when it comes to dealing with Town Councils. It will always be necessary to consult with a Town Planner who can specialises in dealing with this process:

One of the documents that must be lodged in the Deeds Office for registration of transfer is the Rates Clearance Certificate (RCC). By law, at the time of registration of the property into the new owner’s name, all municipal charges relating to the property must be paid. And the RCC serves as confirmation that these monies have been paid.

In a recent article, we looked at the question of whether foreign nationals are permitted to own property in South Africa. A related question is what happens when a foreign national, who has entered into a marriage outside of South Africa, wishes to buy or sell property. Let’s take a look.

Can foreign nationals own property in South Africa? The short answer is yes. But before we explore this topic in any detail, let’s first define what we mean by foreign national – someone who is a non-resident, meaning that they are neither ordinarily resident nor meet the requirements of the physical presence test.

A power of attorney is a useful tool that can be used in many situations. For example, an elderly parent who, due to their age, finds it difficult to attend to their affairs may decide to grant power of attorney to their adult child.

In the past, detecting funds from unlawful activities as they entered the financial system was relatively straightforward. However, with the dishonest among us increasingly making use of juristic or corporate entities to hide their true identities and introduce illicit proceeds into the system, it’s becoming more and more difficult for the relevant authorities to identify these funds. And it’s not only South African officials who find themselves in this position – the challenge cuts across international borders.

The end of a marriage can result in several administrative challenges, not least of which is tackling the joint ownership of immovable property. And while divorce can be a traumatic and emotional experience, with the proper legal advice, the transfer of ownership doesn’t need to be.

In a statement issued late last year, the South African Reserve Bank informed the public that, “the issuing and the acceptance/collection of cheques will cease, effective from 31 December 2020.” At the time, most banks had already begun phasing out this form of payment, with clients making use of cheaper, more convenient electronic payment methods.

If you’re selling a property with a gas installation, a certificate of conformity will need to be obtained before transfer of the property. This certificate is issued in terms of Regulation 17(3) of the Pressure Equipment Regulations and has to be issued by an authorised person.

There’s an ongoing discussion in the commercial world, especially in property law, around the types of documentation that can be signed electronically.

A bank assisted sale (or distressed sale) is the sale of the owner’s property with the assistance of the bond holder (the bank). Contrary to popular belief, the bank doesn’t sell the property but rather assists the owner with the sale in order to limit damages for all relevant parties.

We are experiencing unchartered territory with the current lockdown due to the Coronavirus and while it is impossible to predict what the future holds or have immediate answers to what this might mean for each property related scenario, we can offer some advice to those who have signed an Offer to Purchase prior to or during the lockdown in South Africa.

A title deed is the formal record of who the current owner is of a specific piece of land so naturally, making sure that this information is accurate and up to date is incredibly important.

We know that paperwork isn’t everyone’s favourite thing, and while the property transfer process does require quite a few documents, it needn’t be overwhelming for buyers or sellers. That’s why we’ve put together this list of documents required for transfer of property.

For the majority of property buyers, taking out a bond to help finance the purchase of their dream home is an essential step of the process. The good news for Snymans clients is that our experienced team can guide you through the process…

An estate agent can be an invaluable asset in helping you secure a quick and lucrative sale, but in cases where more than one agent might be marketing your property, how do you know who you owe commission to when a sale is concluded?

Whether it’s through a sale, inheritance or divorce settlement, there are a number of reasons for a property to be transferred from one owner to another. Each scenario is dealt with in slightly different ways, and our experienced team of conveyancing attorneys have put together a brief guide to help you understand the basics of each property transfer type.

For many, the start of 2020 means a new property search, or in some cases a sale. Because there is so much to think about when embarking on this exciting process, the team at Snymans Inc have put together some of their top tips to help you on your journey.

The new year has just kicked off and now is the perfect time to put plans in place to buy your new dream home. If you’re wondering where to start, read on to get some advice from the experts…

A property transfer comes along with significant expenses, but being well informed about what registration and transfer costs you can expect to incur means that you can plan carefully and avoid any unpleasant and costly surprises.

There often comes a time when a beneficiary becomes entitled to take transfer of a property that is registered in the name of a trust. When this happens, there are a few options available to the trust in order to put this into effect.

The decision of who should be appointed as the executor of an estate can be made by the testator. While it is common for a single person to be appointed, it is also possible for a testator to appoint more than one person to share this role which can bring with it certain added complications.

When purchasing a property with a tenant already in place, certain aspects should always be considered before the offer to purchase is signed.

There has been a great deal of talk about 99-year leases which seems to have many, including Parliament, in a frenzy. What does a 99-lease entail? What happens at the end of the lease? Can your children inherit this piece of land? Below we answer some of the key concerns when it comes to a long lease.

Before a property is sold and registered in the buyer’s name, it’s important that it is compliant with relevant regulations and that all parties are aware of the condition of the property and what maintenance or repairs might be needed. The buyer and seller each have responsibilities in this regard and it is important that both parties fulfil these obligations.

Whether you’re selling your home for the first time or you’ve done it all before, it’s easy to get caught out by a few common pitfalls. That’s why we’ve put together this guide on four common mistakes and how you can avoid them.

Building on vacant land has unmatched possibilities when creating your dream home. There are, however, a few other aspects to consider when purchasing vacant land.

Miscommunication on what constitutes movable and immovable property can complicate the sale of a property and may even lead to litigation. It is important to draw a distinction between these when you sell or purchase a property in order to obtain clarity on what will be included in the property transfer.

There will always be elements in a property transaction that will be out of your control as the purchaser or seller, however some elements can be managed in a way as to avoid unnecessary delays.

The marital regime selected at the time of entering into a marriage will have a significant impact on how ownership of property is dealt with within the marriage, which is why it is important to understand the different options available and select the one that best suits you.

While the process for transferring ownership of immovable property remains largely the same in cases where one of the parties to the transfer is a minor, the minor’s contractual capacity must be carefully considered.

The general sentiment is that a cash purchase is always a better option when buying property. However there are many factors to be considered before putting pen to paper.

While a property seller is legally required to disclose any known defects of the property, what can a buyer expect when it comes to unusual characteristics, quirks or abnormal qualities?

There are a number of compliance certificates that a seller is required to submit to confirm that the property is in good condition, prior to concluding a sale. Some of these certificates are only required under specific circumstances, for example the borer beetle certificate.

There’s no denying that it’s tough to break into the property market and that doing this with your partner can be both a financial imperative and an exciting and romantic idea. While there are certainly benefits to jointly buying a property with your partner, it’s also important to go in with your eyes wide open for this endeavour to have the best possible chances of success.

Opening a guesthouse can be a lucrative endeavour, but before taking the plunge and converting a residence into a financially rewarding business, there are important steps to be followed and considerations to be taken into account.

According to South African law, an individual has the right to dispose of his or her estate as he or she wishes by stipulating this in a will. However, this right may be limited when in the public interest.

A new year always brings with it endless opportunity and is the perfect time to forge ahead with new plans and make the first move to achieve goals. If your aim is to sell your property, then follow these keys steps in helping to make sure it’s a successful and lucrative process.

Buying off-plan can seem daunting for purchasers as you are buying a property that is yet to be completed. On the upside, this has become a profitable approach to the property market and indeed, the proverbial early bird does then catch the worm. There are of course many factors to consider before such a decision is made.

Fraudulent scams affect all industries and can be hugely detrimental and costly. The best way in which consumers can protect themselves from falling victim to such a scam is being able to identify the warning signs.

A right of first refusal is a mechanism in a contract that affords the holder of such right the preference to buy a particular property, should the owner ever choose to sell it.

There are a number of forms of ownership of immovable property in South Africa, and sometimes prospective buyers as well as homeowners are not aware of the intricacies of each. To take the mystery out of this for you, we have put together the basics on each of the 3 most common types of ownership: full title ownership, sectional title ownership and long-term lease.

To help buyers looking to purchase property on auction, here is some crucial information relating to auctioned property.

Given certain conditions being met, a property can be transferred as a ‘going concern’ which can be beneficial to the transacting parties.

For prospective buyers who have found the right property, it is always an exciting but also a daunting time when an Offer to Purchase (OTP) has been signed and presented to the seller. The wait then begins before finding out whether or not it has been accepted.

Signing surety for another person, whether family, business partner or friend, can seem like a simple formality in order to help that person successfully conclude an important transaction. But before signing on the dotted line, make sure you know what you’re in for.

There are a number of ways to deal with the undivided shares in fixed property held by two or more people. In the case of joint ownership by married persons, one such way is by one party becoming the sole owner of a property. The process for this will depend heavily on the matrimonial regime selected at the time of marriage.

One of the most important purposes of signing an estate agent mandate is to create a binding agreement between the estate agent and the seller that sets out the terms of the arrangement agreed upon to market and sell the property.

Because there is no specific wording that accompanies a voetstoots clause in the agreement of sale for immovable property, it is not always immediately apparent to non-property professionals what this clause really means.

There are two major differences between the sale of a property out of a deceased estate and a “normal” sale…

Renovations have the potential to sour the best of neighbourly relationships, but what are the legal rights and obligations when it comes to an owner undertaking property renovations? Here are a few things to know…

Every property agreement contract is slightly different, but with our years of experience as conveyancing attorneys, we have identified some key do’s and don’ts that can help make a property sale a success for all parties concerned.

Following on from Part 1, there are a number of aspects relating to the basic sections within a contract of sale that should be considered before either party signs on the dotted line.

In terms of the Alienation of Land Act, 68 of 1981, an agreement for the sale of immovable property, also known as an Offer to Purchase (OTP) in the industry, must be in writing and signed by the parties thereto. The OTP must further contain three essential elements to be legally binding:

While a less common scenario, it is possible for an individual to make an investment in or finance the purchase of a property with the intention of another becoming the owner, and although the transfer process remains largely unchanged, there are a few things to be aware of.

The reality of the current South African economic climate is such that a considerably large number of bond applicants are unsuccessful, while sellers often experience difficulties in selling their properties at a desirable price. The rent-to-buy option is one that addresses both the buyer and seller’s concerns.

Buying a property is the largest purchase that many of us will make in a lifetime, and as such should be dealt with carefully and with the assistance of experts in the field.

Buying a property on auction, while potentially offering valuable investment opportunities, can be daunting to those not familiar with the process. But with some basic background and know-how, it need not put off potential buyers.

The death of a loved one is a difficult time, and the administration and distribution of the deceased estate can involve a great deal of time and work, but a valid Last Will and Testament can ease the pressure considerably.

An offer to purchase (OTP) can be seen as the quintessential document governing the sale agreement between the seller and purchaser. As such, it should be completed accurately and with great care.

For those entering into a marriage out of community of property, an antenuptial contract (ANC) is a must and therefore plays an integral role. And while there are many elements that are typically included, an antenuptial contract can be drafted in a number of ways to suit the unique needs of individuals.

Making an informed decision regarding the potential investment opportunity when purchasing a property relies significantly on having a clear idea of both latent and patent defects relating to the property.

A bond or home loan is often a necessity when buying a property and many consider the primary aim to be paying this loan off, but there are a number of alternatives that could come in handy.

Paying off and cancelling a home loan is often viewed as a significant goal being achieved, but before launching into this step, there are a number of aspects to consider – not least of which is whether cancelling the bond is, in fact, the right decision.

While there are important considerations for unmarried couples who choose to enter the property market together, doing so with care should still result in a positive long-term investment.

We commonly discuss the merits of, and differences between freehold and sectional title properties, but retirement villages often provide a third alternative to these two forms of ownership – Life Right Schemes – for those looking for a lifestyle change in old age.

Timing your move in conjunction with the registration of a property transfer can be tricky, but there are ways to manage occupation dates through the contract of sale.

Bond approval conditions in an offer to purchase, the continued marketing clause, and how these work in practice.

The most common causes of Estate Agent commission disputes and how to avoid them.

The divorce process can be complicated by many factors, one of which is the ownership of immovable property.

To reduce risks and avoid any disagreements or negative outcomes, there are a few vital things that should be included in the contract of sale.

Eviction is a tricky process and one which needs to be handled correctly to avoid any legal repercussions – if the correct process is not followed, the landlord may be punished by the courts and in the most severe cases, imprisoned.

An offer to purchase is a legal document and, once signed by both the buyer and seller, it becomes a legally binding agreement.

A suspensive condition is a term or clause within a contract that clearly stipulates a particular criterion that must be met in order for the contract to come into force. Should the suspensive condition(s) not be met, the contract will be void.