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.

A Conveyancer’s Diary

And here we are, already well into a new year.


What will this year bring, for each of us personally, for the country, politically, sport, F1 and other events?


I am not going to make any predictions this time except maybe just one small one: I predict that our interest rates will remain more or less constant during the coming year.

Today’s note really concerns those dreaded levy clearance certificates that the conveyancer must obtain [in sectional title transfers] in order to be able to “certify” in the Section 15 B(3) certificate that all the levies have been paid up to date [or that provision to the satisfaction of the body corporate for payment has been made]. The conveyancer’s Section 15B(3) certificate is lodged at the Deeds office, and NOT, as some think it is, the levy clearance certificate.

Recently, while attending to a transfer of a sectional title unit of a “scheme” in Bonella, Durban, we were told by the Seller that there were no levies payable, that there were no trustees and there were no managing agents. We did a bit of detective work and could not find anything to help us in our quest. I was about to give up and sign the certificate so that the transfer could go through but something was worrying me about the whole issue. I did a search to establish the names of all the seventeen or so owners in this scheme and prepared a letter to each and every owner in which I pertinently asked whether that owner had any objection to the transfer going through and whether that owner was aware of any levies due, etc.

I hand delivered [personally] all seventeen letters. In some cases, the owner or a family member was at home. In other cases, I had to place the letter under the main door or between the burglar guards. We then had one single solitary phone call from one of the owners, and we managed to find out that the entire scheme was actually under administration in terms of the Sectional Titles Act, that the administrator had appointed managing agents and that my “esteemed” Seller actually owed about R30,000 (thirty thousand Rand!) in arrear levies.

The managing agents were given our undertaking, which they fortunately accepted and we paid the full arrear amount to them once the transfer had gone through. So, all’s well that ends well, in this case. I shudder to think what may have happened had I simply signed the Section 15 B(3). Not only would I (possibly) have been held personally liable for the payment of the outstanding levy, I would also have been reported to the Law Society.

Who says conveyancing is not fun?

Regards
Sieg



Quote:

“Good cannot be accomplished by evil means”

Stephen Donaldson, in Against All Things Ending: The last chronicles of Thomas Covenant, 2010 on p. 333