The question on everyone’s mind is when the Constitutionality of Section 118 of the Municipal Systems Act (MSA) will be tested by our courts. Well that time has come and the Constitutional Court has spoken.
The Constitutional Court recently handed down judgement in the Jordaan and Others vs City of Tshwane Metropolitan Municipality and Others, and declared that a new owner is not liable for the previous owner’s debts arising before transfer of the property.
The unconstitutionality of Section 118 has cause of a lot of concern under homeowners, as this section is viewed as enabling a municipality to hold a new homeowner responsible for the arrear municipal debts of a previous owner. According to this section, an amount due for municipal fees is a charge upon the property and enjoys preference over any mortgage bond registered against the property, thereby creating a security provision in favour of the municipality for the payment of the outstanding debts. No time limit is attached to this provision and it does not matter when the secured debt became due.
The Court stated that Section 118(3) does not require public formalisation (e.g. registration in the Deeds Registry) and thus is required to give notice of its creation to the world. Therefore, to avoid unjustified arbitrariness in violation of Section 25(1) of the Bill of Rights, Section 118(3) of the Municipal Systems Act must be interpreted so that the charge it imposes does not survive transfer to a new owner. According to the Constitutional Court, section 118(3) is constitutional and is well capable of being interpreted so that the charge does not survive transfer to the new owner and it declared that, upon transfer of a property, a new owner is not liable for debts arising before transfer from the charge upon the property under Section 118(3) of the Local Government: Municipal Systems Act 32 of 2000.
New homeowners can feel relieved knowing they are free of historical debt from previous owners

A local property agent noted, “in terms of Section 1 of the Bill a “property practitioner” will now include a bond broker, home inspector, facilitator of an agreement of sale or lease (including a Homeowners’ Association), a seller of timeshare or fractional title, a property manager, and a property developer.
Exclusions from this definition are attorneys and candidate attorneys, sheriffs of the court, a person offering property practitioner services but not in the normal course of his business, and a person selling his own property (but excluding a property developer).”
The requirement that the person earns some sort of gain for their services has been omitted from the definition. Even persons performing the above functions without reward may be deemed to be property practitioners hence subject to the regulatory requirements.
He also noted that Section 20 of the Bill brings Real Estate in line with other service industries like insurance and banking, as it establishes the Property Practitioners Ombud. This takes the responsibility for consumer complaints away from the regulatory authority.
The Ombud will deal with complaints from the public against property practitioners and follow a process to handle these complaints, a mediation process will be utilised. The Ombud’s authority may also hear disputes between property practitioners, but only if both parties agree to this.
The new Bill seeks to imbue inspectors of the regulatory authority with the power to enter any premises (other than the private home) of a property practitioner and to seize certain articles, without a warrant.
This is a potentially dangerous power to put into the hands of persons who may not be conversant with constitutional rights and, if this provision passes into law, it is likely to generate litigation against the authority.
The existing Act prohibits a person from offering estate agency services whilst not in possession of a Fidelity Fund Certificate (FFC). The act goes on to state that a person who is not in possession of a current FFC is not entitled to a commission.
The new Bill preserves the spirit of the existing Act in this regard and goes one step further in requiring that any remuneration earned by a property practitioner whilst not in possession of an FFC must be refunded to the person who provided the remuneration upon demand.
The local property agent mentioned that three new additions to section 49 which deals which deal with instances in which a property practitioner has disqualified automatically from being issued an FFC from the authority and thereby prohibited from trading lawfully.
“The first is the requirement to be in possession of a tax clearance certificate. It is highly unfair and probably not legally sustainable to disqualify a person from being issued with an FFC where they have a genuine dispute with SARS, and therefore cannot obtain a tax clearance.
Secondly, being on the Treasury tender defaulters list as a provider (even as a director, member, trustee, partner, or shareholder) is now an instance for disqualification. The practicality of this provision is questioned as it will be very difficult for the authority to determine who the shareholders of public companies on that list are.
Thirdly, a property practitioner who is not is possession of a BEE certificate is automatically disqualified. This provision is unlikely to remain in its current form as the new schedules to the BBB-EE Act deem an enterprise with an annual turnover of less than R10 million to be an “exempt micro-enterprise” (“EME”). Such EME is not permitted to be issued with a BEE certificate, even if it required one.”

Property practitioners may not accept a mandate to sell or let a property without a mandatory disclosure from the seller or landlord. This applies to both commercial and residential properties.
The signed mandatory disclosure will form part of the sale or lease agreement. If a written mandatory disclosure is not included, then the agreement will be interpreted as if no defects or deficiencies were disclosed.”
He concluded by stating “We await an additional revision of the Bill in due course as the property sector is still contributing more commentary and input.”.

The Constitutional Court ruling on Tuesday, 29 August 2017, favours all property owners! The ruling stated that municipalities cannot hold a new property owner liable for a previous owner’s historical municipal debt.

What does this ruling mean for Business and Property Owners? The precedent-setting ruling will provide relief to owners, who have been struggling with this burden for years and have been denied municipal services until the debt had been paid. According to Justice Edwin Cameron, “…the court found that upon transfer of a property, a new owner is not liable for old municipal deb.” The historical debt includes water, electricity, rates, and taxes charges associated with a property.

When a property is sold, municipalities would be the first to claim the debt from the proceeds of a property sale. But if the previous owner still owed the municipality debt spanning over 2 years, the property was not allowed to be transferred to the new owner, according to section 118 (1) of the Municipal Systems Act. Judge Dawie Fourie declared Section 118 (1) and (3) of the Municipal Systems Act unconstitutional, as these sections “…unjustifiably limited the property rights of new owners under the Constitution.” Arguments against Section 118 included that making a new owner liable for historical debt could promote the deprivation of property, in line with the prescripts of the Bill of Rights.

What does this mean for the Municipalities? According to the ruling by the Constitutional Court, municipalities may not attach and sell the property to settle the debt of the previous owner. Furthermore, municipalities may not refuse to supply municipal services because of outstanding historical debts. Property owners can now breathe a sigh of relief knowing that they will not be charged with others debt!

 

Homeownership is an ultimate goal set by many. Both renting and buying has financial advantages. However renting does have an edge especially when the economy is unstable and poor.

There are great financial benefits to renting as opposed to buying a house. Check out eight reasons why renters can have the better financial deal than homeowners.

1. Renting a property, means that your landlord is responsible for all maintenance and repair costs. Unless you are directly responsible for the repairs that have to be done.

 

2. Renters have the better financial deal upon signing as a house with a mortgage requires a sizable down payment. The deposit for renting a property is much lower compared to buying a property.

 

3. Most Rent amounts are certain for the span of the lease agreement, if it’s a fixed-term contract. This makes it easier to budget your money as you know how much you are meant to pay.

 

4. Property values go up and down over the years. The property value of where you stay depends on the area you live. This affects homeowners in a big way. It affects renters to a much lesser because they can move out to a cheaper place anytime.

 

5. By renting you can save more than a homeowner. Homeowners that have debts can have trouble saving if they cannot properly manage their budgets. Renting is mortgage-free.

 

6. When you purchase a house you are tied down to living in that location for at least a few years. Whereas if you are renting a property you are flexible to move.

 

7. You can also share your rental space if it can accommodate more people. Housemates are useful because you can split the bills and end up having best friendships.

 

8. Rental properties usually have a more compact floor plan that is set. Therefore renters can often expect to face lower utility costs.

 

The choice between renting and buying is a big decision to make. Before making a hasty move, review the details and make the financial decision that is the best for you and your family.

Kelly Philiphs who is happy with renting states, “There are so many considerations when deciding whether to buy a home. It’s not the ‘ideal’ scenario for all families.

Don’t be fooled by promises of tax savings that is not always the case.

A home is a huge investment so be sure to research what it might mean for you before taking the leap and don’t be afraid to say no. I did.

As I sit on my rented porch, staring out at my rented view while my kids happily play inside a house that they’ve already made their home, I don’t regret my decision one bit.”

 

 

 

A Fitzanne estate property agent noted “I was recently confronted by the trustees of various bodies corporate concerning the installation of a fibre network.

Fibre technology is the latest trend as it is designed to push large amounts of data very quickly making it much more attractive for its users than using a telephone, ADSL line or mobile service such as 3G.

However, installing the fibre network normally requires the lifting of paving and the laying of conduits and there is uncertainty amongst trustees as to whether they need consent for the installation.

As well as if the installation of the fibre network amounts to an improvement to common property that is necessary or not.”

He also stated that an improvement to common property is dealt with in the prescribed Management Rule (PMR) 29, Annexure “1” to the Regulations promulgated under the Sectional Titles Schemes Management Act 8 of 2011 (the “STSM Act).

He explained that the installation of the fibre network is paid for by the owner/s requiring the service and not by the body corporate. “This applies in most cases and has applied in all the instances that I have dealt with.

In my view, the question whether or not an improvement to common property is reasonably necessary will only be relevant when the body corporate pays for such improvement, e.g. the installation of a swimming pool or tennis court. Therefore, and in my view, PMR 29 does not apply.”

He gave an example to clarify, “To simplify the situation, it can be compared with Telkom installing a phone or the local council installing an electricity infrastructure on the common property for prepaid services to the residents.

In such instance, the trustees must ensure that any damage to the common property is repaired and the common property is restored to its original state.

Therefore, it is my considered submission that the trustees are able to consent to the installation of a fibre network subject to reasonable conditions, such as the owner accepting liability for any damage caused to the common property by the service provider.”

He added, “Should the service provider fail to repair such damage or fail to restore the common property to its original state, the Body Corporate can attend thereto and keep the owner liable for the reasonable repair costs.”

 

 

 

Living in a sectional title scheme sometimes results in arguing and fighting over parking spaces. Who is responsible for deciding where one parks? Is it a free for all parking matter?

According to a Fitzanne Estates property agent, “When it comes to parking bays in a sectional title scheme you must note the type of ownership that one has in a sectional title scheme.

Firstly, you will have full ownership of your section that you purchased. Secondly, you will have an undivided share in the common property of the scheme”

He added, “Thirdly, you may have a right to an exclusive use area such as a parking bay or a garden area. This does not imply full ownership.

The owner or occupier of a section must not (except in the case of an emergency) without the written consent of the trustee of the scheme park a vehicle, allow a vehicle to stand or permit a visitor to park or stand a vehicle on any part of the common property.”

Problems can arise in a sectional title scheme especially when home owners do not agree on who can use additional bays. Some home owners tend to want to use exclusive certain parking places and this hence causes conflicts.

The solution to this problem can be solved if the body corporate can set up a rental pool which allows homeowners to lease parking bays on an annual basis

The property agent noted, “Letting of common property in this way is covered in the Act, and such a system also means that the body corporate receives a steady income from the parking, because any bays that go vacant can immediately be re-let to other owners that need them.”

He also stated, “Another problem is what to do with a common parking bay that has been used by a homeowner, who is then selling their home. A general rule that can be used to solve this issue is to prevent homeowners to have the power to transfer the lease over to anyone else, including the new owners of their unit.

 

These parking bays should go back into the rental pool and let to the next person on the waiting list. Indeed, the only time that a unit owner can sell a parking bay is if it is an exclusive use area in terms of the plans.

 

We advise anyone who is buying a sectional title unit and being asked to pay for such a space to first confirm that this is actually the case by referring to the sectional title plan.”

It is also vital for the body corporate to make sure that solutions to sectional title schemes parking are in place so as to avoid conflict and to make sure that all homeowners are on the same page.

Many sectional title schemes have tacit arrangements, generally established over long periods of time, in respect of who is “entitled” to park where. Hence it’s vital to seek clarity and full understanding of where you can park.
 

A Fitzanne Estates property agent noted that members of a Body Corporate must be aware of the Sectional Titles Schemes Management Act 8 of 2011 (“STSMA”) as it clearly outlines how meetings should be conducted.

“A Body Corporate is obliged to comply with the provisions of the STSMA and regulations. A notice period of at least 14 days’ written notice must be provided for an annual general meeting

A shorter period of 7 days’ written notice is allowed if the trustees find it necessary to provide shorter notice due to the urgency of a matter or where all members have agreed thereto in writing. At least 30 days’ written notice is required where a special or unanimous resolution has to be passed at the meeting.”

They also explained that a method of notice is where a special or unanimous resolution will be passed. The notice must be delivered by hand or by pre-paid registered post. In addition (not in substitution of the mentioned methods of delivery), a notice may also be provided by fax or email.

“A notice of a meeting, where only an ordinary resolution will be passed does not require notice by pre-paid registered post. Notice by normal post will suffice.”

For the meeting location, the general meeting must be convened within the local municipal area where the scheme is situated unless the members have by special resolution decided otherwise.

Quorum requirements for schemes with less than four primary sections must have two-thirds of the total votes in value and eligible to vote present. Schemes with four or more primary sections must have one-third of the total votes in value and eligible to vote present at the meeting to have a quorum present.

He also explained the voting rights, “members who are in arrears with their levy contributions or are breaching the rules of the Body Corporate, after a court or adjudicator has given a judgment, or ordered to pay the arrear contributions, or to comply with the rules of the Body Corporate, will not be entitled to vote at general meetings.

However, these members are still entitled to cast a vote when a special or unanimous resolution are considered. Proxies: a member may be represented either in person or by proxy at a meeting, provided that a person does not act as a proxy for more than two members.”

They also noted that failure to provide proper notice of a meeting does not invalidate decisions taken at such a meeting, if the Body Corporate made a reasonable attempt to give proper notice of such a meeting to all parties entitled to notice.

“It is important that trustees and members of a Body Corporate familiarise themselves with the requirements prescribed in the STSMA and regulations to ensure that a meeting is called and convened correctly,” they concluded.

It has become widespread that owners of property, which is leased to tenants and their appointed leasing agents, find it difficult to obtain redress with regards to due payable rental money.

The money is used as a reimbursement for repairs of damage to property by a tenant or the eventual eviction of tenants who are in breach of the lease agreement. Reasons that landlords experience such difficulties are because legislative procedures are not properly followed.

According to a Fitzanne Estates property agent, collecting arrear rent and obtaining an eviction order against any defaulting tenant could be a complex and disheartening process. He, however, noted that should a tenant breach the terms of the lease agreement the process of obtaining redress should be as painless as possible, if done correctly.

The lease agreement is vital, and it’s important to ensure that the person signing the agreement as the lessee is the person who will be responsible for payment of the rent. If someone else will occupy the premises is should be disclosed as such.

The lease agreement should contain clauses dealing with payment of rent, duration, occupation, guests, overcrowding, breach of the agreement, legal costs, and the delivery of notices in terms of the lease agreement and legal proceedings. A well-written lease agreement complies with the provisions of the Consumer Protection Act, Act 68 of 2008 and the Rental Housing Act, Act 50 of 1999. Should the agreement not comply with the provisions of these Acts, certain clauses in the agreement or the entire agreement could be declared void by the Court.

Non-compliance with legislative provisions could result in a long and costly Court process, as tenants predominantly raise technical defences with specific reference to the agreement and legislative compliance.

It has become increasingly hard to find good tenants, hence investigating the tenant’s history, and to check previous lease references is essential. Tenants who cause damage to the property have a tendency to repeat the same behaviour.

The property agent also added, “It’s also vital to follow up with owners of previous properties rented by the prospective tenant with regard to payment of rent and maintenance of the property. Proper inspections of the premises must be conducted at commencement and termination of the Lease with the tenant in terms of the provisions of the Rental Housing Act. Failing to conduct these inspections or failing to note any damage to the property may result therein that a claim for damages against the tenant could fail. Should a tenant be in breach of the agreement, notice of such breach should be delivered as a matter of urgency. The notice of breach should provide the tenant with sufficient notice to remedy the breach.”

The Consumer Protection Act provides that a lessor may cancel an agreement, should a tenant not remedy a breach within 20 business days after being notified of such breach. Should the agreement contain a clause in which the tenant should remedy any breach within a period less than the 20 business days, as provided in terms of the Consumer Protections Act.

It would, therefore, be prudent to include both the notice period, in terms of the Consumer Protection Act, and any other notice period provided for, in terms of the agreement, and warn the tenant that should he fail to remedy the breach within the former notice period the agreement will be cancelled. Should he fail to remedy the breach within the latter notice period, legal action can be taken to cure such breach.

A lessor should ensure that after the expiry of the 20 business days, as mentioned above, a notice of cancellation is delivered to the tenant. Once the notice of cancellation has been delivered correctly the agreement will be cancelled and the tenant and all other persons occupying the premises through him will be unlawful occupants of the premises in terms of the Prevention of Illegal Eviction and Occupation of Land Act, Act 19 of 1998.

According to Lourens Grobler, “It is important to note that the key to the successful collection of arrear rent and the eviction of unlawful occupants is swift action and legislative compliance. As a lessor, you should ensure that the correct steps are taken decisively and without delay. Proper groundwork, i.e. the lease agreement, inspections, references and the correct notices will close the door on technical defences and ensure the cost and time efficiency of any legal action to be taken.”

On the 9th of December 2014, Jubi Properties (Pty) Ltd submitted a written offer to purchase (the Offer) a property owned by Boyce. The Offer was irrevocable until 17h00 on 12 December, thereafter it would lapse. However, the offer was not accepted within the stipulated time frame.

The parties met again on 14 December (2014) and negotiated and agreed to change the Offer through a handwritten document referred to as the ‘heads of agreement’. Initially they intended to draft a fresh agreement, however they did not.

At the meeting held on the 14th, they also decided to backdate the agreement to the 12 December 2014. According to Jubi, this was due to the parties’ common concern that if the agreement reflected acceptance on 14 of December Jubi would be accepting a lapsed offer. Hence in order to avoid any confusion, they backdated it.

Some details of the agreement stated

1. a) The purchaser was identified as ‘Jubi Properties and/or a nominee’;
2. b) The Offer contained a suspensive condition that Jubi would furnish Boyce with a letter of satisfaction regarding its due diligence inspection within 10 days, failing which the agreement would lapse;
3. c) A non-refundable deposit of R400 000 was payable within 48 hours after the due diligence acceptance letter.

The due diligence was completed by 24 December (2014). Jubi advised Boyce of the satisfaction of the due diligence requirement and the parties gave effect to the agreement on the basis that it had been rendered unconditional, through the payment of the deposit.

Jubi properties then sought to exercise its right to appoint a nominee and chose a third party company to be the purchaser. It sought to cancel the agreement and to enter into a new deal. Nothing followed from this and Jubi remained the intended transferee.

In March 2016, Boyce’s attorneys advised Jubi that the agreement had lapsed due to nonfulfillment of the suspensive condition, or had been canceled pursuant to Jubi’s alleged repudiation of the agreement. The lapse of the agreement allegedly arose from the failure to comply with the due diligence within ten days after 12 December 2014.

The letter of satisfaction was furnished only on 24 December, the provision was not complied with and the agreement lapsed. The repudiation, Boyce further argued, related to Jubi’s (alleged) statement that it did not have sufficient funds, evidenced by it seeking to avoid the levy of double transfer duty on the transaction.

The critical issue for determination was the date upon which the ten day period for the performance of the due diligence and delivery of the letter of satisfaction commenced. The Offer provided expressly that it would lapse if not accepted by 17h00 on 12 December 2014. The Offer was not accepted hence it lapsed automatically.

The final verdict took into consideration that the fact that the parties chose to utilize the terms of the Offer that had lapsed in establishing their agreement on 14 December 2014, was irrelevant to the fact that the agreement came into existence on the 14th OF December 2014. A term of a contract cannot come into existence or commence operation prior to the establishment of the

Regulations issued under the Occupational Health and Safety Act, states that an authorized person must issue a gas compliance certificate after installation, modification, or alteration of a gas installation or where there is a change of user or ownership within a property.

According to regulation, 17(3) of the Pressure Equipment Regulations promulgated in terms of the Occupational Health and Safety Act 85 of 1993, that became effective from the 1st of October 2009. It makes it compulsory for a gas compliance certificate to be obtained in the event that a property is sold.

The fact that the gas appliances on your property have been installed before the Act became effective does not mean that you are exempt from getting the gas compliance certificate. It is a requirement that must be met.

When a property is sold, a new certificate must be obtained, regardless of how old or recent the existing one may be. The gas compliance certificate warrants that gas appliance on the property is safe according to standards.

It is recommended that a gas compliance certificate is obtained on the sale of the property. The seller is usually responsible for obtaining such certificate. The requirement of a gas certificate cannot be waived however the responsibility can be shifted from the seller to the purchaser by way of an appropriate clause in the agreement.

The recommended clause for sale agreement states that “ the seller undertakes to, at the seller’s expense obtain, from an accredited person, a Certificate of Conformity confirming that any gas installations on the Property comply with section 17 (3) of Government Notice R73 of 15 July 2009, Government Gazette 32395.

The certificate shall be delivered to the Purchaser prior to the date of occupation or within 5 days of demand for delivering. The parties agree that the Certificate of Conformity certifies that any gas installation on the Property complies with safety standard as determined by the relevant legislation and is not to be regarded as a general guarantee covering all aspects of any gas installation on the Property.

The Purchaser shall have no further claims against the seller with regard to any gas installation on the Property.

There is no need to wonder why you might need a gas compliance certificate because the regulation provides that every owner or user of gas reticulation equipment and systems must have a valid gas certificate.

The Occupational and Health Safety and Safety work OHSA does not only aim to ensure health and safety at work areas only but within properties too.