A Conveyancer’s Diary: Friday, 13th January 2012

Consternation in the Pietermaritzburg Deeds Office

The heading sounds a bit like the over-dramatic headlines used in newspapers. But let me explain.

Yesterday a notice was sent out to conveyancers by the Assistant Registrar of Deeds, Pietermaritzburg to the effect that some clerks were taking out examiner’s notes at prep and further that such conduct was inappropriate and should be discontinued. Then another notice was sent out by the same person to advise that some conveyancing firms were sending “clerks” [i.e. not qualified conveyancers] to “execute deeds on behalf of their principals” and that this “is highly inappropriate and illegal”. The notice went further to state that as from Monday, 16^th January 2012, only conveyancers would be allowed in the execution room during execution times.

The responses from various conveyancers were swift in coming in. Here are some of them:

“Why not take action against the firms that have caused the problem instead of prejudicing all of us”

“..(has) this totally unacceptable conduct been reported by the Registrar to the Law Society . . ?”

“can anyone enlighten us as to what the clerks do at execution”

“I assume that what the notice seeks to convey is that clerks are not to be delegated the duty of ''handing in'' deeds in the absence of the executing conveyancer? Clerks are obviously not entitled to sign any deeds - for obvious reasons - nor are they entitled to sign the lodgement covers. They have never been authorised to do this, and must never be permitted to do so.”

“It will be impossible for conveyancers to finish executing within the time required if they can’t be assisted with the administrative stuff.”

“Did the offending conveyancer allow his/her clerk to actually sign the deed on his/her behalf [horrors!!], or did he allow the clerk to hand the deeds in after execution, but in the conveyancers absence?”

“It sounds like there was a particular encounter that was inappropriate. It must be dealt with on its own merits to restore the great and efficient relationship that the Government has with the Private sector. The Deeds Offices must be congratulated and celebrated for being one of the few government departments that maintains a consistently high standard of professional service delivery.”

The point to remember is that any deed of transfer or bond which is not signed by the conveyancer, [and signed by a clerk] would be invalid.

Regards

Sieg

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Quote:

“I wish to be cremated. One tenth of my ashes shall be given to my agent, as written in our contract.”

Groucho Marx as quoted in Josh Kaufman’s “The Personal MBA”

Fixtures and fittings

Most sale agreements have a clause to the effect that the fixtures and fittings in the house must remain.

The problem then arises as to exactly what is included under the “fixtures and fittings”. Does this include curtain rails? A Chandelier [which so impressed the Purchasers]? The swimming pool automatic cleaner? [Won’t mention the trade name or else I get into trouble.] And a wendy house?

Usually only after registration of transfer and once the Purchasers have moved in, that the latter realize that items are missing.

The common law cases on the issue say that anything that was affixed to the property with the intention of being a permanent affixture, is a fixture and becomes part of the property.

But my guess is that it is best to define exactly what is meant by fixtures and fittings in the sale agreement, i.e. to describe these in fine detail so that there can be no room for dispute later on. With the onset of the Consumer Protection Act, this aspect takes on even greater significance.

Regards

Sieg

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Quote:

“I actually like my job. It’s the stress that I hate.”

S K Heiriss

When it is not possible to pay

We have had a few occurrences with a certain bank where, on the day before registration, this bank’s attorneys inform us that there is a “shortfall” on the home loan account and that we must pay this amount onto the bond so that the bond cancellation can proceed the next day. [No, I am not going to mention the bank’s name to prevent this bank from “reporting my conduct” as unprofessional to the Law Society, which one of the others did.]

However, when trying to make payment, whether by EFT or by physical deposit [cash or cheque] at a branch of this illustrious bank, one finds that the home loan account number has been “blocked”. So it causes a delay because we then have to ask the bond cancelling attorneys to ask their bank to “unblock” the account so that the payment can be made.

This all happens a day before registration and leads to much annoyance because of further unnecessary delays.

I used to bank with this bank and every time this happens, I am again reminded of how nice it was to close all my accounts at that bank.

Regards
Sieg



Quote:

“The very conscience itself of the best of men when it spoke loudest – when the soul heard as it were an inward voice bidding it to obey a divine law – was made the ground of condemnation; . .”

From the chapter on the trial of Jeanne D’Arc in Sir John Macdonnell‘s book “Historical Trials”

Consumer Protection Act: Cancelling the sale agreement

The author in yesterday’s article on Realestateweb makes the following statement:

“The purchasers of property that was marketed to them via direct marketing, such as e-mail, will be able to cancel the sale after the property has been registered, and months after the sale agreement was signed, according to the new Consumer Protection Act (CPA).” [My underlining]

The full article is available at http://www.realestateweb.co.za/realestateweb/view/realestateweb/en/page228?oid=79422&sn=Detail

The Consumer Protection Act comes into operation on 01st April 2011.

A possible cancellation after registration raises some interesting questions, such as:

1. Will it be the original conveyancer, who attended to the transfer to the Purchaser, who must now see to the re-transfer of the property to the Seller?
2. What about the money that has been paid, for example, to the former bond-holder, to settle that bond? And will that bond simply be “re-instated” by the bank?
3. Who is going to pay the costs of the “re-transfer”?
4. Will SARS readily refund the Purchaser any transfer duty that has been paid?
5. What about the original estate agent? Must the estate agent refund the full commission? What if the agent has already spent the money? Or is no longer an estate agent?
6. Will it make sense, in order to prevent such a “cancellation”, to allow the purchasers to occupy the property for a minimum of five business days and then only pass transfer?

Regards
Sieg




Quote:


“You get a shiver in the dark
It's raining in the park but meantime
South of the river you stop and you hold everything
A band is blowin' Dixie double four time
You feel alright when you hear the music ring”

Mark Knopfler of Dire Straits in “Sultans of Swing” [Sorry, again, my underlining]

[quote brought about by Anton of “Future World” facebooking that he is having supper at the Tait Modern, London, which is South of the River.]



Siegie Heiriss: S K Heiriss Inc
Attorney, Conveyancer & Notary

Tel: 031 701 1238
Fax: 031 701 1239 or 031 709 0972
Fax to e mail: 0866 178 041
Cell: 083 786 26 26
SMS: 083 701 05 03

Personal e mail: sieg@legalfirm.co.za
Web: www.legalfirm.co.za
Skype: Legalmansa

Physical address :
Ground Floor, Unit 5
Pinewood Park
18 Underwood Road
Pinetown

Good news for the property industry from yesterday’s budget

Following Minister Gordhan’s budget speech yesterday, government proposes that transfer duty on the acquisition of immovable property is to be reduced on transactions concluded on or after 23rd February 2011, as follows:

1. First R600,000 will be exempt;

2. Then on the value or purchase price between R600,000 and R1,000,000.00, transfer duty will be at 3%;

3. On property value or purchase price above R1,000,000.00 to R1,500,000.00, transfer duty will be R12,000 plus 5% of the amount between R1,000,000.00 and R1,500,000.00; and finally:

4. Where the value or purchase price is above R1,500,000.00, then transfer duty will be R37,000.00 plus 8% of the amount in excess of R1,500,000.00.

At the very end of the “proposal” [See the document entitled “Tax Proposals – Budget 2011“ to be found @ http://www.treasury.gov.za/documents/national%20budget/2011/ ] the following interesting statement is made: “It will also be applicable to legal persons (close corporations, companies and trusts).”

Regards
Sieg


Quote:


“Forsan et haec olim meminisse iuvabit”

[Translated into English as "Perhaps someday it will be good to remember even these things” i.e. to remember all the trials and tribulations we have faced and overcome.]
Per Virgil in the Aeneid.

This quote is reportedly painted on the wall of the office of Zuckerberg, founder of Facebook, as told in “The Facebook effect”.

A Conveyancer’s Diary

Of cattle, horses and other animals


“Except with the consent of the Administrator, no cattle and no horse, cow pig or goat or other animal of a similar nature shall be kept on the erf.”


Thus reads one of the conditions in a title deed of a residential property situated in the heart of Westville.


I was checking the new transfer documents and found the condition. It now troubles me. Do I leave the condition in the new deed or do I remove it? Something about this bothers me and somewhere in the deep recesses of my memory I have this notion that conditions of this “nature” must be left out.

I had another (good) look at the circular from our Pietermaritzburg Registrar of Deeds number 2 of 2009 in which she dealt with those conditions that must be omitted from title deeds by virtue of the KwaZulu-Natal Planning and Development Act of 2008. These are conditions in favour of the Administrator [nowadays the Premier of the Province] which for example prohibit subdivision of prohibit the erection of a row of tenement houses, and so on. But nothing is mentioned about cattle or the other animals.

What to do now? Do I leave the condition in and hope that my Pietermaritzburg agent will know better? Or do I take it out and hope for the best? Or do I do two pages of the draft deed, one with the condition and one without, and ask my Pietermaritzburg agent to pick the correct one? Or do I write about this in my Conveyancer’s diary and hope that one of those conveyancers or conveyancing assistants who like Flippie have so many years of vast experience that one of them will be able to shepherd my animals clause in the right direction?

Regards
Sieg



Quote:

“ . . and the sign flashed out its warning
In the words that it was forming
And the sign said, "The words of the prophets are written on the subway walls
And tenement halls"
And whispered in the sounds of silence”

From Simon and Garfunkel’s Sounds of Silence

A Conveyancer’s Diary

When conveyancers (and their assistants) panic


In most transfers of properties, Transfer Duty is payable. In order to obtain the Transfer Duty receipt, certain documents are lodged at the applicable SA Revenue Services offices. We usually send our documents plus the cheque in favour of SARS, to our Pietermaritzburg agents, who then lodge these documents at the Pietermaritzburg SARS offices.

Last week we were told that SARS is no longer accepting physical i.e. paper, submission of documents and that all transfer duty receipts had to be applied for using the SARS e-Filing system. We then also found out that the e-Filing was not working so well (meaning: delays) and this was confirmed in a circular by John Christie, conveyancer of Pietermaritzburg.

Time to hit the panic buttons, we thought.

Then we received some reprieve in the form of an e mail from SARS, Pietermaritzburg telling us that an extension has been granted to 31st March 2011.

Now, I have no difficulty in going the e-Filing route, provided it works. And, it sure would have been nice if SARS could have given us some advance warning as to the cut-off date of physical paper submissions.

Regards
Sieg



Quote:

Talking of the early days of M-Net in South Africa:

“Central to M-Net’s strategy was the purchase of a decoder by the end user, which allowed the channel’s signal to be unscrambled. Since decoders were initially handmade and rare, the plan was to market them first to hotels and then to apartment buildings, where a single decoder could service multiple living units. But a major obstacle came in the form of the body corporate that governed the apartment blocks. They required a 90 per cent approval vote from members to charge residents in the building for the new pay-tv service, a majority that proved impossible to secure” [The author continues to suggest that this nearly led to the demise of the then fledgling M-Net. The 90 percent approval that she refers to, is presumably to a “unanimous resolution” in terms of the Sectional Titles Act and presumably is to the old 1971 Act as the current 1986 Act gives unanimous resolutions as an 80% figure.]

From the section on “Koos Bekker” by Cheryl Uys-Allie in South Africa’s Greatest Entrepreneurs, compiled by Moky Makura, 2010, at p.62.