Graham Sonnenberg Attorney

01/01/2023

Old friends Carla Pinheiro and Robin Bristow visiting on new year’s day afternoon

02/08/2018

There is a first time for everything. I have notarised hundreds or maybe thousands of Antenuptial Contracts over the last 30 years. This lovely couple, Marcela Guerrero Casas and Dustin Kramer is the first to ask me to record the moment on camera, together with their witnesses, yesterday - 1 August 2018

01/04/2016

Conveyancing News and ViewsFriday, 01 April 2016 Search ArticlesRSS Feed Subscribe Contribute Home About Us Contact UsLAW REPORTS NEWObject properly31 March 2016
“The mere lodging of an objection, however ill-founded, does not trigger an obligation to furnish detailed reasons for the underlying decision relating to the valuation of the property” (extract from judgment below)
Your local municipality is entitled to revalue your property (with reference to recent sales of similar properties in your area) at regular intervals.
Of course any upward valuation means more money out of your pocket every month because the rates you pay are arrived at by multiplying your property’s municipal valuation with the municipality’s current “rates factor” as set by it in its budgeting process.
Municipal valuers must, at least every four years, prepare a general valuation roll with particulars of each property as at the date of valuation, and you must be given notice that you can lodge an objection.
This is of course your chance to convince the municipality that its valuation is wrong; just be sure to lodge your objection within the specified time limit, in the specified format, and with sufficient detail.
A terse exchange; and a botched objection
The recent High Court case of Coutsourides N.O. and Another v Nelson Mandela Bay Metropolitan Municipality and Others (3565/2015) [2015] ZAECPEHC 66 shows clearly the danger of neglecting the part about giving enough detail –
A property owner Trust’s objection to a revaluation gave as the reason for objection: “Subject property has been vacant for 18 months. Market has declined therefore the market value of my property should also be reduced.”

The municipality dismissed the objection and, when asked for reasons, replied in equally terse fashion: “The information submitted by the objector is insufficient to justify a change in valuation.”

The trust asked the Court to order the municipality to give “adequate reasons” for dismissing the objection.
Give full reasons or fail

30/03/2016

First time home owners may qualify for a subsidy of between R20 0000.00 and R87 000.00 - see below

https://www.westerncape.gov.za/service/finance-linked-individual-subsidy-programme-flisp

The Finance Linked Individual Subsidy Programme (FLISP) is an instrument that assists qualifying households by providing a once-off down payment to those households who have secured mortgage finance to acquire a residential property for the first time.

14/03/2016

Below is a summary of the transfer tax rates from 01 March 2016.



Value of the property beeing transferred Transfer duty rate

R 0 - R 750,000 - No transfer duty

R 750,001 - R 1,250,000 - 3% of the amount above R 750,000

R 1,250,001 - R 1,750,000 - R 15,000 + 6% of the amount above R 1,250,000

R 1,750,001 - R 2,250,000 - R 45,000 + 8% of the amount above R 1,750,000

R 2,250,000 - R 10,000,000 - R 85,000 + 11% of the amount above R 2,250,000

Above R 10,000,000 - R 937,500 + 13% of the amount above R 10,000,000

29/12/2015

BUYING A PROPERTY FOR THE FIRST TIME?

If you are buying property for the first time, here are a few pointers:
• Know in advance how much bond finance you qualify for. A bond originator or home loans consultant at your bank will be able to advise you about this. It is no use putting in an offer for a property if you are not going to qualify for a high enough bond. You waste the sellers and the agent’s time and set yourself up for disappointment when the application is declined.
• When processing your home loan application, your credit record will be looked at. If you have a judgement against your name for an unpaid account or a court case you lost, your application will probably be declined. Make sure old judgement debts are settled and investigate having the judgement rescinded (reversed) before you purchase a property.
• Familiarise yourself with the market: Look around at show-houses or show-flats in the area you are keen to live in and get an idea of prices. Bear in mind that the asking prices and the final prices obtained are not the same, but at the moment there is a shortage of residential accommodation at the lower end of the market, so if your offer is too low, you may lose your dream home to somebody else who makes a better offer.
• Do your budgeting in advance. Unless you qualify for 100 percent bond, you will need to have saved or made alternative provision for portion of the purchase price. A deposit is not a legal pre-requisite but always makes an offer more attractive to a seller, as it shows commitment on the part of a potential purchaser. You will also have to pay transfer costs (the bulk of which consist of transfer duty charged by the state on the purchase price) and bond registration costs. These amounts are payable prior to your taking transfer (becoming owner) and cannot be paid off at a later stage, so get advice from an attorney or estate agent in advance as to how much you need to budget. If you don’t have the funds available when required, you may end up being in breach of contract and the seller may cancel the sale and hold you liable for damages (any loss suffered), which can have very costly consequences.
• If you are serious about a property, go back a second or third time to view it and take an objective outsider along. Be on the lookout for rotten timber, damp walls and signs of leaking roofs as these are tell tail signs of potential major expense. Ask as many questions as you like and most importantly of all, make sure that any special conditions or warranties (for example that the roof does not leak) or undertaking that items will be repaired by the seller, are inserted in the Deed of Sale and stipulate the time frame for such repairs. The wording must not be broad enough for the seller to undertake the repairs after the transfer has gone through. Verbal undertakings are not binding. Do not sign an Offer to Purchase unless and until any such conditions are inserted, as you will otherwise be agreeing to acquiring the property “voetstoots” (as it stands) with regard to pre-existing defects that are visible.
• If there are any movable items (such as bar stools or other items of furniture or pool cleaning equipment) which are included in the sale, make sure that the agreement clearly stipulates this, failing which the seller can remove such items. However fixtures and fittings of a permanent nature always go with the property (unless agreed otherwise in the sale agreement).
• If you are buying in a sectional title complex, ascertain the position regarding parking bays and visitors’ bays in advance. There is often a shortage of parking and this becomes a huge issue afterwards. If you are being sold the exclusive use rights to a parking bay or any outside area, make sure that your bay or area is clearly identifiable and stipulated in the sale agreement.
• If you have to give notice at a property you rent, give some attention to the dates of occupation and transfer so that you don’t end up paying rental and a bond instalment in the same month.
• If you want or have pets, check that they are allowed in the complex or if you need consent from the body corporate to keep them, insert this as a suspensive condition in the sale agreement.
• If you plan to do renovations or improvements to the property, bear in mind that you can only commence them once you have taken transfer. You may need prior consent from the body corporate and/or the City Council if the alterations are structural. Investigate in advance whether obtaining such consent it likely to be problematic to avoid ugly disputes at a later stage.

________________________
Graham Sonnenberg is an attorney practising independently in Green Point and specialising in property, conveyancing, wills and estates, tel 021 4397709, e mail [email protected]

22/11/2015

WHAT DOES YOUR CONVEYANCER DO?
What is a property transfer and what does a conveyancer do?
A transfer means a transfer of ownership of a property, whether it be an erf (piece of land, which may or may not have a building or buildings on it), a farm or a sectional title unit/s. Ownership of all registered land in South Africa is recorded in one of the 10 Deeds Registries (or Deeds Offices as they are commonly referred to) in South Africa.
The transfer process consists of a number of steps and there are a number of Laws (The Deeds Registries Act, The Sectional Titles Act, The Municipal Systems Act, The Transfer Duty Act, The Value Added Tax Act and The Administration of Estates Act, among others) which have to be complied with during the course of the process.
A conveyancer (sometimes referred to as “transferring attorney”) is an attorney who has passed a separate examination. Only admitted attorneys can become conveyancers and only qualified conveyancers can sign the documentation required to be lodged at the Deeds Office to register property transactions and to appear before the Registrar of Deeds when a transfer is registered. Every day conveyancers from numerous law firms go to the Ex*****on Room at the applicable Deeds Office and sign the deeds (mostly transfers and mortgage bonds, but there are others, such as the opening of sectional title registers and subdivisions of land) in the presence of the Registrar of Deeds and/or his Assistant Registrars, one of whom then signs each deed. Ownership in law passes when the second signature is appended. At that point, transfer has taken place or has been registered.
Property transfers vary in that they are sometimes fairly quick and simple and sometimes more complicated, as they can be linked to a short or long chain of other transactions that have to be registered simultaneously. This happens when a number of parties each sell a property and each one is reliant on the sale proceeds of their property to pay for the property they have purchased.
The normal steps that have to take place for the usual property transfer are as follows:
• Conveyancer has to read the sale agreement thoroughly and familiarise himself with the terms contained in it.
• Conveyancer has to verify the full names and marital statuses of the parties and obtain F**A documents for all of these in compliance with the Financial Intelligence Centre Act.
• Conveyancer has to do a Deeds Office search verifying the correctness of the property description as contained in the sale agreement and checking that the Deeds Office records concur with the details of the parties as per the F**A documents obtained. Any errors in Deeds Office records or change of marital status of the parties has to be dealt with in the course of the transfer process or could lead to the Deeds Office rejecting the deeds, which delays registration.
• Conveyancer has to obtain a rates clearance certificate from the local authority (which is not always as simple as it should be and can cause delays). The seller has to pay all arrears and a 120 day advance payment in order to get the clearance.
• Conveyancer has to arrange the cancellation of the seller’s bond/s over the property and to arrange bank guarantees for the outstanding amount/s owed.
• Conveyancer has to check the conditions in the existing title deed and draft a new title deed, sometimes omitting conditions of title or adding new ones, a technical exercise outside the knowledge of the layman.
• Conveyancer sends a copy of the new draft title deed to the attorneys registering the new bond for the purchaser and supplies them with other information they require.
• Conveyancer’s paralegal usually drafts the transfer documents for signature by both parties which is then signed.
• Conveyancer collects transfer costs from the purchaser. The bulk of these costs is usually the transfer duty which the conveyancer has to pay to SARS, though if the transaction is vatable, there will be no transfer duty and the conveyancer obtains a transfer duty exemption. The conveyancer has to answer all queries raised by SARS, which are sometimes many.
• Conveyancer must obtain consents from the Body Corporate, Home Owner’s Association, Master of the High Court or any other consents which may be required.
• When the rates clearance certificate, the transfer duty receipt/exemption and any other required consents have been obtained, the conveyancer lodges the transfer at the Deeds Office for examination in conjunction (or “linked”) to the other transactions, typically the cancellation of the seller’s bond and the registration of the new bond, often each one being done by different firms of attorneys.
• The Deeds Office takes in the region of 12 to 14 working days to examine the documents. Notes (queries) may be raised, which the conveyancer has to answer, or if there is an important error, the batch may be rejected and must be corrected and re-lodged.
• Registration can take place once all of the above steps have been completed. The conveyancer will only register if the purchase price, transfer costs and any other amounts owing have been paid or secured by guarantee.
A straight forward transfer normally takes eight to ten weeks, but this can vary due to circumstances. For most people, your home is the largest and most important asset that you will ever own. Your rights and the value of your investment need to be protected, so it both makes sense and is the usual practice for the seller to choose the conveyancer. Some purchasers feel that as they are paying the costs of transfer, they should have the right to appoint the conveyancer, but unless the seller specifically agrees to this in the sale agreement, it is the seller’s prerogative to choose. My recommendation to sellers is to not agree to the purchaser appointing the conveyancer. As the owner (until transfer), it is in your best interests that the conveyancer is answerable first and foremost to you.
_______________________________________

Graham Sonnenberg is an attorney practising independently in Green Point and specialising in property, conveyancing, wills and estates, tel 021 4397709, e mail [email protected]

02/11/2015

SUSPENSIVE CONDITIONS IN SALE AGREEMENTS

In standard deeds of sale used by estate agencies, there will be a clause dealing with suspensive conditions. In this article, I look at what a suspensive condition is and what the consequences of fulfilment or non-fulfilment are for buyers and sellers of property.
A suspensive condition is sometimes called a “condition precedent” . “Suspensive” means that that the validity of the sale is held in suspense pending the happening of a certain event.
The most common suspensive condition relates to the granting of bond finance. A purchaser needs to finance the purchase price of a house or flat by means of registering a bond in favour of a bank (or in favour of a private person or entity, though most bonds these days are in favour of the big banks) simultaneously with the taking transfer of the property. In order to protect the purchaser and for the purpose of clarity, it is essential that the clause in the sale agreement stipulates:
• How much in Rand terms the purchaser needs. To say that “this sale is subject to the purchaser obtaining a bond from a bank” is not sufficient, as the amount of the bond is all important. If the purchaser is granted bond finance but for a lesser amount than stipulated in the contract, the sale lapses, unless the purchaser, prior to the cut -off date stipulated, waives (abandons or drops) the benefit of the suspensive condition (thereby agreeing to pay cash) or agrees to accept the lower bond. This waiver or acceptance must be in put into a written document (usually called an “Addendum” to the sale agreement) and signed by the purchaser.. Once this has been done, the sale becomes unconditional.
• By which date the suspensive condition must be fulfilled. It is vital to insert a cut- off date in a bond clause and in any other suspensive condition.
If a suspensive condition is not fulfilled by the stipulated date, the sale lapses and if the purchaser has paid a deposit, it must be refunded to him/her unless it can be proved that he/she did not make a bona fide attempt to get the bond or took steps to jettison the bond application. This happens in cases where purchasers get buyer’s remorse and want to get out of a sale agreement. Under normal circumstances, if a suspensive condition is not fulfilled, the failure of the condition cannot be regarded as a breach of contract and the purchaser can walk away, but if the purchaser orchestrated the failure of the condition, the deposit would be forfeited and the seller would probably be entitled to enforce performance by the purchaser.
The other common suspensive condition is when someone buys a property subject to the sale of another property. In such cases, it is essential that the clause stipulates:
• By when the other property must be sold.
• The minimum price for which it must be sold,
failing which the clause is meaningless.
The clear and correct wording of suspensive conditions in a contract is important for:
• Sellers, in that they need to know when a sale agreement has lapsed so that they can find another buyer and not end up liable for commission to two estate agents or have two buyers both demanding transfer from them.
• Purchasers, in that they need to ensure that they are not liable to perform in terms of sale agreement when they do not have enough money to cover their liability for the purchase price and transfer costs. If a purchaser needs to sell his existing property in order to pay for a new one but does not insert this in a contract and then the existing property doesn’t sell, such purchaser will be in breach of contract, unable to fulfil legal obligations – not an enviable position to be in.
From a seller’s point of view, the absence of suspensive conditions makes an offer more attractive as:
• The transfer can take place more speedily as there is no waiting for conditions to be fulfilled, which is why people speak enthusiastically about “cash offers”.
• There is no uncertainty as to whether or not the sale is final and the seller can therefore plan his or her next move with certainty.
For the above reasons, sellers sometimes accept a cash offer that is for less than a conflicting offer that is subject to suspensive conditions.
It is important to obtain assistance from your conveyancer or an experienced estate agent when it comes to making or accepting offers that contain suspensive conditions so as to fully understand the possible consequences and avoid expensive mistakes and delays.
_______________________________________

Graham Sonnenberg is an attorney practising independently in Green Point and specialising in property, conveyancing, wills and estates, tel 021 4397709, e mail [email protected]

28/09/2015

PINK PROPERTY

DEFECTS IN A PROPERTY

If you are buying a brand new property which has just been constructed from a developer, The Consumer Protection Act grants you protection and various remedies available to you if you discover defects in the property. However these remedies are not available to you if you buy an existing house or flat from a private owner (unless such person deals in property regularly), which is the more common situation which I want to canvas briefly in this article.
The usual sale agreement in such a situation would normally contain a clause stipulating that the property is sold “voetstoots as it now stands”. At this point, we need to differentiate between latent and patent defects. A latent defect is a fault that would not be apparent if there was a reasonable inspection, whereas patent defects are defects that are not hidden and should easily be noticed by a reasonable inspection.
The voetstoots clause affords protection to a seller for patent defects. For example, it there are cracked or broken windows or a hole in the floor that is not hidden by a carpet. These are patently visible in a normal viewing and unless a clause in the sale agreement is inserted stating that the seller is liable to repair such defects, the purchaser acquires the property with such defects “as is.”
An example of latent defects would be a roof that leaks during heavy rain or damp in the walls which is visible as it has been painted over. A seller is not liable for the cost of repairing such items if he or she was not aware of them. Many a dispute has gone to court when a purchaser has sued a seller for latent defects in a property. The onus is on the purchaser to prove that the seller knew or must have known about the defects at the time of the sale and deliberately withheld the information or failed to disclose it. This can be difficult to prove, but if the purchaser succeeds in doing so, the seller will be liable.
No warranty, representation or undertaking to repair is of any force or effect unless contained in writing and signed by the parties to a sale agreement. In other words, a verbal assurance from a seller or agent that the roof has never leaked or that the seller will remedy a damp problem before the transfer takes place, is not enforceable. It is essential that such undertaking or warranty is inserted under “special conditions” in the sale agreement. Conversely, if you are a seller, it is recommended that you disclose any defects in the property that you are aware of in the sale agreement and that these are brought to the attention of your purchaser before you sign in order to avoid any disputes or litigation.
2.

A standard sale agreement stipulates that a seller has to furnish compliance certificates from accredited contractors for the following prior to registration of transfer and to pay for any repairs necessary for the issue of such certificates:
• Electrical Compliance;
• Plumbing/water compliance;
• Beetle Free Certificates (Cape Town only and only for certifiable beetle);
• Gas (when there is piped gas/appliances);
• Electric Fences.
These compliance certificates, some of which have only become standard in recent years, grant significant protection to purchasers against expensive hidden defects but it is still a good idea to have a property inspected by an expert for other hidden defects before signing on the dotted line.
________________________

Graham Sonnenberg is an attorney practising independently in Green Point and specialising in property, conveyancing, wills and estates, tel 021 4397709, e mail [email protected]

PINK PROPERTY

DEFECTS IN A PROPERTY

If you are buying a brand new property which has just been constructed from a developer, The Consumer Protection Act grants you protection and various remedies available to you if you discover defects in the property. However these remedies are not available to you if you buy an existing house or flat from a private owner (unless such person deals in property regularly), which is the more common situation which I want to canvas briefly in this article.
The usual sale agreement in such a situation would normally contain a clause stipulating that the property is sold “voetstoots as it now stands”. At this point, we need to differentiate between latent and patent defects. A latent defect is a fault that would not be apparent if there was a reasonable inspection, whereas patent defects are defects that are not hidden and should easily be noticed by a reasonable inspection.
The voetstoots clause affords protection to a seller for patent defects. For example, it there are cracked or broken windows or a hole in the floor that is not hidden by a carpet. These are patently visible in a normal viewing and unless a clause in the sale agreement is inserted stating that the seller is liable to repair such defects, the purchaser acquires the property with such defects “as is.”
An example of latent defects would be a roof that leaks during heavy rain or damp in the walls which is visible as it has been painted over. A seller is not liable for the cost of repairing such items if he or she was not aware of them. Many a dispute has gone to court when a purchaser has sued a seller for latent defects in a property. The onus is on the purchaser to prove that the seller knew or must have known about the defects at the time of the sale and deliberately withheld the information or failed to disclose it. This can be difficult to prove, but if the purchaser succeeds in doing so, the seller will be liable.
No warranty, representation or undertaking to repair is of any force or effect unless contained in writing and signed by the parties to a sale agreement. In other words, a verbal assurance from a seller or agent that the roof has never leaked or that the seller will remedy a damp problem before the transfer takes place, is not enforceable. It is essential that such undertaking or warranty is inserted under “special conditions” in the sale agreement. Conversely, if you are a seller, it is recommended that you disclose any defects in the property that you are aware of in the sale agreement and that these are brought to the attention of your purchaser before you sign in order to avoid any disputes or litigation.
2.

A standard sale agreement stipulates that a seller has to furnish compliance certificates from accredited contractors for the following prior to registration of transfer and to pay for any repairs necessary for the issue of such certificates:
• Electrical Compliance;
• Plumbing/water compliance;
• Beetle Free Certificates (Cape Town only and only for certifiable beetle);
• Gas (when there is piped gas/appliances);
• Electric Fences.
These compliance certificates, some of which have only become standard in recent years, grant significant protection to purchasers against expensive hidden defects but it is still a good idea to have a property inspected by an expert for other hidden defects before signing on the dotted line.
________________________

Graham Sonnenberg is an attorney practising independently in Green Point and specialising in property, conveyancing, wills and estates, tel 021 4397709, e mail [email protected]

DEFECTS IN A PROPERTY
If you are buying a brand new property which has just been constructed from a developer, The Consumer Protection Act grants you protection and various remedies available to you if you discover defects in the property. However these remedies are not available to you if you buy an existing house or flat from a private owner (unless such person deals in property regularly), which is the more common situation which I want to canvas briefly in this article.
The usual sale agreement in such a situation would normally contain a clause stipulating that the property is sold “voetstoots as it now stands”. At this point, we need to differentiate between latent and patent defects. A latent defect is a fault that would not be apparent if there was a reasonable inspection, whereas patent defects are defects that are not hidden and should easily be noticed by a reasonable inspection.
The voetstoots clause affords protection to a seller for patent defects. For example, it there are cracked or broken windows or a hole in the floor that is not hidden by a carpet. These are patently visible in a normal viewing and unless a clause in the sale agreement is inserted stating that the seller is liable to repair such defects, the purchaser acquires the property with such defects “as is.”
An example of latent defects would be a roof that leaks during heavy rain or damp in the walls which is visible as it has been painted over. A seller is not liable for the cost of repairing such items if he or she was not aware of them. Many a dispute has gone to court when a purchaser has sued a seller for latent defects in a property. The onus is on the purchaser to prove that the seller knew or must have known about the defects at the time of the sale and deliberately withheld the information or failed to disclose it. This can be difficult to prove, but if the purchaser succeeds in doing so, the seller will be liable.
No warranty, representation or undertaking to repair is of any force or effect unless contained in writing and signed by the parties to a sale agreement. In other words, a verbal assurance from a seller or agent that the roof has never leaked or that the seller will remedy a damp problem before the transfer takes place, is not enforceable. It is essential that such undertaking or warranty is inserted under “special conditions” in the sale agreement. Conversely, if you are a seller, it is recommended that you disclose any defects in the property that you are aware of in the sale agreement and that these are brought to the attention of your purchaser before you sign in order to avoid any disputes or litigation.
2.
A standard sale agreement stipulates that a seller has to furnish compliance certificates from accredited contractors for the following prior to registration of transfer and to pay for any repairs necessary for the issue of such certificates:
• Electrical Compliance;
• Plumbing/water compliance;
• Beetle Free Certificates (Cape Town only and only for certifiable beetle);
• Gas (when there is piped gas/appliances);
• Electric Fences.
These compliance certificates, some of which have only become standard in recent years, grant significant protection to purchasers against expensive hidden defects but it is still a good idea to have a property inspected by an expert for other hidden defects before signing on the dotted line.
________________________
Graham Sonnenberg is an attorney practising independently in Green Point and specialising in property, conveyancing, wills and estates, tel 021 4397709, e mail [email protected]