CGT: DUE ON AGREEMENT DATE OR LATER?

01 February 2012

Property sellers who owe CGT to the Receiver of Revenue on the sale of a property often wonder when they will be asked to pay this- on the date of entering the sale agreement, or at the end of the tax year in which the agreement was signed?

The answer is that a seller is not liable to pay CGT on the date of registration of transfer of the property. Instead, the CGT is added to the amount of the normal tax payable by the seller and will be payable on assessment of his/her annual tax return.

Read more on this topic HERE

For queries on this topic, please feel free to contact Johan Greyling at johang@stbb.co.za

TAX RELIEF NOW EXTENDED TO HOLIDAY HOME OWNERS!

25 January 2012

Amended income tax provisions offer relief for homeowners whose properties are registered in Close Corporations, Companies or Trusts. The legislation allows owners to transfer their properties from the owning entity without incurring Capital Gains Tax (CGT), Secondary Tax on Companies (STC) or transfer duty, provided certain conditions are complied with. The terms of the legislation have always been interpreted by SARS as applying only to primary residences.

Amendments to Para 51A that were gazetted on 10 January this year, provide that the tax relief will now be extended to properties where the owner may not have “ordinarily resided”, but have still used for mainly domestic purposes. This would then appear to open the way for the transfer of holiday homes. In addition foreign owners who do not ordinarily reside in South Africa may now also utilise the legislation. Click here for more information in our article from December 2011 - before the amendments were gazetted.

To take advantage of this tax relief, or to get more information, contact Allan White at allanw@stbb.co.za or 021 673 4700.

STBB WISHES TO… SAY THANK YOU

15 December 2011

As we enter the busy holiday season of parties, family gatherings and shopping, we want to pause for a moment to honour the important friendships that are the true basis of business relationships. One of the great pleasures of the holiday season is the opportunity to exchange greetings with those whose support and goodwill we so highly value.

In this spirit, it is our pleasure to say thank you and extend our sincere appreciation for the pleasant and treasured association we enjoy with you and for the confidence and trust you place in us. The volatility of the past year strengthened our appreciation for your continued support - we thank you for that.

With 2012 looming, you might be pondering your new year’s resolutions. STBB too have been planning resolutions – first among them our ongoing resolve to maintain a high degree of service and integrity that will enable us to continue to earn your support.

May you and those close to you enjoy a joyous holiday season and a healthy and prosperous new year. We look forward to working with you in 2012 and for many years to come.

HOW CAN SECTIONAL TITLE SCHEME RULES BE AMENDED?

30 November 2011

Sectional title scheme rules can be amended by way of a meeting of the owners of units in the scheme. The decision needs to be made:-

- by passing a unanimous resolution to change the Management Rules. For example, it may be decided to change the levies payable by owners of garage sections in accordance with a certain formula.

Or

- by passing a special resolution for the Conduct Rules to be amended. For example, Conduct Rules might prohibit “braai-ing” in an exclusive use garden or balcony, unless the owner first obtained the consent of the trustees.

Two trustees must complete and sign the prescribed Form V to be filed in the Deeds Office. The amendment will become valid on the day on which the amended rule has been filed in the scheme’s file in the Deeds Office.

If you need help with amending your sectional title scheme’s rules, contact one of our property professionals at info@stbb.co.za

EASIER DISPUTE RESOLUTION IN SECTIONAL SCHEMES

24 November 2011

For too long owners in sectional title schemes and housing estates governed by property owners association rules had difficulty in resolving disputes with their governing association, largely due to the existing Sectional Titles Act or specific Property Owners Association Rules not providing adequately on how disputes had to be resolved.

The Community Schemes Ombud Services Act, set to come into effect shortly, establishes an Ombud to assist in the resolution of disputes in community schemes i.e. sectional title schemes, shareblock companies, housing schemes for retired persons or schemes with a property owners association.

Any owner or tenant in a community scheme, or the association that manages the scheme, may approach the Ombud regarding a dispute relating to the administration of the scheme and which has a bearing on financial issues, behavioural issues, scheme governance issues, meetings, management services or work pertaining to private and common areas.

The lodging of a dispute is a simple process initiated by referring a written complaint to the Ombud’s office.

For more detail on this topic, read our 2 earlier articles here.
The dispute resolution process
Time periods for lodging disputes with the Ombud service

If you need legal advice on the resolution of a sectional scheme dispute, contact one of our property professionals at info@stbb.co.za.

Law Update : Issue 1

03 February 2012

COHABITATION WITHOUT AN AGREEMENT - RISKY

Ponelat v Schrepfer (802/10) [2011] ZASCA 167 (19 September 2011)

Married couples have legal certainty as to what they may expect to retain as theirs upon dissolution of their…

Issue 2 - 2012

27 January 2012

WHO SIGNS AGREEMENT FOR CC? MEMBER OR PURCHASER OF THE CC?

Divine Heights 5 CC v Greg & Sons Enterprises CC and Another (1844/2011) [2011] ZAFSHC 189 (24 November 2011)

Having just acquired a shelf CC in which to…

Issue 1 - 2012

20 January 2012

LIABILITY FLOWS FROM PROMISES – BEWARE THOSE BROCHURES

Guthrie and Another v Etango Game Lodge (Pty) Ltd and Another (66601/2010) [2011] ZAGPPHC 214 (9 December 2011)

This is an interesting judgment where a developer…

Issue 35 - 2011

09 December 2011

DEVELOPER’S EXTENSION RIGHT NOT INCLUSIVE OF RIGHT TO LEASE

Body Corporate of Savannah Park v Brainwave Projects 1147 CC and Others (735/10) [2011] ZASCA 239 (1 December 2011)

In this matter the Supreme Court of…

Law Update : Issue 7

02 December 2011

DECEASED ESTATES AND THE RIGHT TO MAINTENANCE

South African law upholds the principle of freedom of testation. This means that people have virtually absolute control over the devolution of their estates in that they can make…

MUNICIPAL CLEARANCE BLUES

Sent: 17 January 2012

In November last year the City of Cape Town Municipality advised that it would implement a new ISIS system for the processing of rates clearance applications, amongst other things. ISIS has been put into action, but the…

THE PAIA MANUAL DEBACLE AND RELIEF

Sent: 05 January 2012

During the last months of 2011, many of us were flooded with e-mails that warned of the looming deadline for all private companies to have their PAIA Manuals ready by 1 January 2012.

This was because the Promotion…

DEEDS HOLD-UPS OVER FESTIVE SEASON

Sent: 07 December 2011

The Deeds Office recently announced that it will close at 10h00 on Friday 23 December 2011 and will reopen only on 03 January 2012.

In addition, as advised in our newsflash dated 31 October 2011, the City of Cape…

PRESCRIBED INCREASE OF DOMESTIC WORKERS’ SALARIES

Sent: 06 December 2011

In terms of the Basic Conditions of Employment Act, the Minister has now laid down increased tariffs for the minimum salary of domestic workers. From 1 December 2011 onwards, domestic workers working more than 27 hours…

CAPE TOWN FREEZES ISSUING OF RATES CLEARANCES

Sent: 31 October 2011

The City of Cape Town municipality is implementing a new services integrated system in order to streamline, amongst others, the issuing of valuations and rates clearance certificates. Read their notice here.…

The Consumer Protection Act

The Consumer Protection Act and typical property transactions.

Sign on the Dotted Line

Sign on the dotted line - enough to conclude the contract or must acceptance be communicated to the other contracting party.

Retirement Villages 2

Retirement villages, and introduction to their legal nature, applicable legislation and the risks faced by investors in such schemes.

Buchanans Brief December 2011 | Issue 3

Despite it being our first event of this kind, the feedback we have received from riders and spectators alike is so overwhelmingly positive and encouraging that we’ve decided to make it an annual event on the STBB social calendar!

SENT 31 JANUARY 2012

By virtue of Registrar’s Circular 7/2011, farm names in title deeds and/or mortgage bonds incorrectly reflected as two words or one word or vice versa, should not be amended in terms of Section 4 (1)(b) of the Deeds Registries Act.

Examiners must affix the ‘renumbering’ endorsement and enter the correct farm name.

The practice in ‘renumbering’ shall not be applied where the farm name is wrongly cited in the title (a Section 4 (1)(b) is still required).

Sent 1 December 2011

In order to prove intestacy, the following supporting documents need to be lodged:

1. A next of kin affidavit endorsed by the Master; and
2. An affidavit signed by the Executor or Master’s Representative stating that the deceased passed away with no valid will.

Sent 21 November 2011

The Department of Rural Development and Land Reform has published the 2011 Registrars’ Conference Resolutions, a copy of which is attached hereto. [912.52KB]

Sent 8 November 2011

In terms of Chief Registrars’ Circular 6/2011, when citing the name of a private company the word “Proprietary” is no longer to be written in brackets but must be cited as, for example, “ABC Proprietary Limited”. Should you however continue to use the abbreviation, the brackets must be used and the company will be cited as “ABC (Pty) Ltd”.

Sent 25 October 2011

Regulation 16 of the Sectional Titles Act 95 of 1986 has been amended and now provides a prescribed form to be filed where the original Form W in the sectional title file at the Deeds Office has been lost. A Certificate of Replacement in the form of Form AO prepared by a conveyancer must be filed in duplicate. This amendment will come into effect on 28 October 2011.

Sent 11 October 2011

Regulation 10 of the Sectional Titles Act, 95 of 1986, has been amended and now provides a prescribed form to be used where a mortgagee consents to the opening of a sectional title scheme. Form AL must be used and the amendment will come into effect on 28 October 2011.

Sent 30 September 2011

The Chief Registrar has issued Circular 10 of 2011 which deals with the impact of the amended regulations issued in terms of the Sectional Titles Act, 95 of 1986.

We enclose herewith copies of the Chief Registrar’s Circular No. 10 of 2011 and the amended Government Gazette 34639 of 2011. [1.49MB]

Sent 27 September 2011

In terms of the Companies Act, 71 of 2008, the Afrikaans words “Eiendoms Beperk” or abbreviation “(Edms) Bpk” may no longer be used. The words must always appear in English even where the deed, bond or application is in Afrikaans.

Sent 26 September 2011

The Registrar of Deeds, Cape Town has issued RC 5/2011 regarding the application of the new Companies Act and the implementation of CRC 6/2011.

We enclose herewith copies of the Chief Registrar’s Circular No. 6 of 2011 and the Registrar’s Circular No. 5 of 2011.

Sent 13 September 2011

Where a person is married according to the laws of a foreign country, reference must be made to such foreign marriage in all documents and deeds lodged in the Deeds Office. Please note, however, that parties may not be described as being married according to the Laws of the United Kingdom, but reference should be made to the Laws of either Scotland, England or Wales.

In instances where the marriage of the party is being governed by the Laws of the USA, such description must also make reference to the particular state, eg “Married, which marriage is governed by the Laws of Louisiana, United States of America”.

Sent 30 August 2011

Where a General Power of Attorney is intended to be used for more than one transaction it must be registered separately, even if the transactions are lodged in the same batch.

Sent 16 August 2011

The Deeds Office may call for documentary evidence where the identity numbers and marital status of parties to a redistribution agreement are not apparent from the agreement.

Sent 2 August 2011

A person may take on the surname of their new spouse after conclusion of a marriage or revert to a former surname after a divorce. Where a registered deed contains the previous surname, any new deed, application or bond lodged at the deeds office must reflect the surname formerly used directly after the newly adopted surname.

Sent 19 July 2011

An application for the registration of an extension of a section in terms of Section 24(6) of the Sectional Titles Act 95 of 1986 must be lodged with:

Sent 5 July 2011

Parties may cancel or vary an Antenuptial Contract prior to the solemnisation of the marriage by means of a Notarial Deed of Cancellation or Amendment. Once the marriage has been concluded an Antenuptial Contract may only be amended or revoked by the Court.

Sent 27 June 2011

We enclose herewith copies of Chief Registar Circulars 6 and 7 of 2011 issued on 24 June 2011.

CRC 6 of 2011 deals with the impact of the Companies Act 71/2008, which came into operation on 1 May 2011, on Deeds Office procedures. It addresses amongst others, the procedures relating to the registration of a change of name of a company and the conversion of a close corporation to a company.

As a result of CRC 7 of 2011, examiners no longer need to examine draft sectional plans. RCR 2 of 2009 has been withdrawn and registrars can therefore no longer insist that any deviation from the plans lodged in terms of Section 25(13) of the Sectional Titles Act 95/1986 be sanctioned by an order of court before being registered.

Sent 14 June 2011

Where a black person passed away on or after 15 October 2004 the estate must be administered in terms of the Administration of Estates Act 66/1965 and the Intestate Succession Act 81/1987. The Deeds Office will not accept any Appointment of a Representative issued in terms of the Black Administration Act 38/1927 or register any transaction even if a Magistrate signed and stamped the Power of Attorney.

The Deeds Office will only accept such Certificates of Appointment issued in terms of Act 38/1927 where a black person passed away before 15 October 2004.

Issue 28 sent 21 April 2010

A new block plan must be lodged with the registration of the extension of a sectional title unit.
 
It need not be lodged where the block plan has not changed as a result of the extension, and the surveyor or architect has made a note on the floor plan to that effect.

Issue 27 sent 7 April 2010

Where components of a consolidation are mortgaged by different bonds no provision is made in the Deeds Registries Act 47 of 1937 for the substitution of the bonds.

Either

• the bonds over all the components will have to be cancelled,

alternatively

• all bonds save for those having the same components as security will first have to be cancelled and an application in terms of Section 40(5)(a) of the Deeds Registries Act can then be registered to substitute the whole of the consolidated land as security under that bond/s. Component properties that are bond free will thus become part of the security under the bond.

Issue 26 sent 24 March 2010

Where parties have, in terms of the Civil Union Act 17 of 2006, entered into a civil partnership instead of a marriage, they must be described as:
ABC
Identity Number
And
DEF
Identity Number
Partners in a civil partnership in community of property in terms of the Civil Union Act No 17 of 2006
where no antenuptial contract was entered into.

If the parties registered an antenuptial contract, the description must read:
ABC
Identity Number
Partner in a civil partnership out of community of property in terms of the Civil Union Act No 17 of 2006

Issue 25 sent 10 March 2010

Where a usufruct or habitatio is to be registered over a property which is subject to a registered mortgage bond, the waiver, in favour of the registered bond must be contained in a notarial deed.

issue 24 follow on sent 25 February 2010

Please find the list of Executing Conveyancers appearing on behalf of our firm in alphabetical order.

• Allan White
• Anna Elizabeth Van Rooyen
• Belinda Kate Lewis
• Beverley - Ann Louise I`Ons Raeburn
• Corlene Mostert
• Darren Brander
• Elene Groenewald
• Elma Hamman
• Frederik Van Wyk Jooste
• Hanlie Ferreira
• Hein Dyssel
• James Phillipson
• Jenine Louise Theron
• Joy Michelle Greeff
• Kevin Daniel
• Lauren Sullivan
• Luthfeya Cassim
• Melanie Coetzee
• Philip Du Toit Steyn
• Refqah Fataar Ho-Yee
• Roshana Solomon
• Roux Kemp
• Tiaan Esterhuyse
• Warren Hamer

Issue 24 sent 24 February 2010

A Power of Attorney must contain all the names of the conveyancers who are appointed to appear and execute at the Deeds Office on behalf of the grantor. It is not permissible to insert the names of any appearers after signature of the Power of Attorney without obtaining full initialling by the grantor and witnesses.

A list of names of the executing conveyancers appearing on behalf of our firm is available on request.

**Follow on from issue 24 sent 25 February 2010

Issue 23 sent 10 February, 2010

Rules which create Exclusive Use Areas in terms of Section 27A of the Sectional Titles Act, 95 of 1986, are management rules and not conduct rules, and can thus only be amended by a unanimous resolution of the Body Corporate.

Issue 22 sent 28 January, 2010

A new block plan must be lodged with the registration of the extension of a sectional title unit.

It need not be lodged where the block plan has not changed as a result of the extension, and the surveyor or architect has made a note on the floor plan to that effect.

Issue 20 sent 09 December, 2009

Where a subdivision is lodged for registration, an endorsement in terms of Section 31(1) of the Land Use Planning Ordinance 15 of 1985 confirming that all conditions of subdivision have been complied with, must be lodged.
 
A rates clearance will no longer be sufficient proof of compliance.  This does not apply where the transferor or transferee is a local authority.

Issue 19 sent 25 November, 2009

Any power of attorney executed within the Republic shall, if it purports to give authority to pass, cede, amend or cancel a deed capable of being registered or to perform any act proper to be performed in a deeds registry, shall be:

• attested either by two witnesses above the age of fourteen years, competent to give evidence in any court of law in the Republic, or
• by a magistrate, justice of the peace, commissioner of oaths or notary public, duly described as such.

Provided that no person shall be competent to attest any power of attorney under which he is appointed as an agent or derives any benefit, as this might lead to a conflict of interest and duty.

Issue 18 sent 11 November, 2009

Where rectification of a Title Deed is required in respect of a piece of land in consequence of a survey or re-survey of such land or of the correction of any error in the diagram thereof under the Land Survey Act, 1927:

The registrar may, on written application by the owner of the land accompanied by the title deed and the new or the corrected diagram thereof, any bond thereon and any registered deed of lease or other registered deed whereby any real right therein is held by any other person as well as the written consent of the holder of such bond, lease or right, endorse on the aforesaid deed a description of the land according to the new or corrected diagram, which description shall supersede the description already appearing in the aforesaid deeds.

Issue 17 sent 28 October, 2009

These exchange transfers are normally done simultaneously, although this is not a requirement.  If they are not done simultaneously then all the transfer duty receipts must be lodged with the first transfer.

If pieces of land, registered in different deeds offices, are being exchanged, then each deed of transfer which will be registered as a consequence of the exchange, must be accompanied by a certified copy of the transfer duty receipt which will be lodged with the deed of transfer in the other deeds registry.  The other normal documents must also be lodged.

Issue 16 sent 14 October, 2009

When property that is subject to a restriction on “alienation” is mortgaged, the consent of the holder of the right must be lodged.  Such consent must only be lodged where the word “alienation” is contained in the condition concerned.

Where the term “transfer” is used in the condition, there is no need to lodge a consent.

Issue 15 sent 30 September, 2009

Every condition referred to in a Title Deed must give reference to the Deed in which it was first imposed i.e. the Creative Deed.

For instance where Deed of Transfer No. T123/2009 contains a condition that reads : “Subject to the condition imposed in terms of Section 57B of….reading as follows…”

Then the following Title Deed must contain a reference to T123/2009 and will read as follows : “Subject to the condition contained in Deed of Transfer T123/2009 imposed in terms of Section 57B of…, reading as follows…”.

Issue 14 sent 10 September, 2009

Regulation 68(1) of the Deeds Registries Act 47 of 1937, requires a written application by the holder of the relevant deed, as well as a sworn affidavit.

The application and affidavit should describe the deed and state that it has not been pledged and is not being held by anyone as security for a debt or otherwise, but that it has actually been lost or destroyed and that after a thorough search it cannot be found.

An agent of the holder cannot make the affidavit on behalf of the holder of the deed.

Issue 13 sent 26 August, 2009

The reference to Trusts in deeds and supporting documents must read
THE OMEGA TRUST

NUMBER IT 123/2009

AND

THE OMEGA TRUST

NUMBER IT 123/2009

Issue 12 sent 05 August, 2009

If an application in terms of Section 45(1) or 45bis of the Deeds Registries Act to endorse a title deed is lodged and the property is mortgaged, the bank`s consent to the application must be obtained in terms of Section 45(2) and 45bis(2) and not in terms of Section 57.

Issue 11 sent 22 July, 2009

Where the purchase price of a property is incorrect in a Deed of Transfer, the error must be corrected by means of an application in terms of section 3(1)(v) of the Deeds Registries Act and not by an application in terms of section 4(1)(b).

Issue 10 sent 08 July, 2009

For the registration of an estate transfer done in terms of the Intestate Succession Act 81 of 1987, the Deeds Office requires lodgement of:

• an affidavit by the executor or Master’s representative stating that the deceased died without leaving a valid will and
• a next-of-kin affidavit certified by the Master as a true copy.

Issue 9 sent 24 June, 2009

The fee for transfers done in terms of section 45 or section 45(bis) of the Deeds Registries Act will increase to 75% of the new recommended tariff in respect of instructions received after 1 July 2009.

Issue 8 sent 10 June, 2009

The name of the High Courts has changed in terms of the Renaming of High Courts Act 30 of 2008.
The High Court in:

Cape Town, must be described as the Western Cape High Court, Cape Town

Grahamstown, must be described as the Eastern Cape High Court, Grahamstown and

Port Elizabeth, must be described as the Eastern Cape High Court, Port Elizabeth.

Issue 7 sent 27 May, 2009

The words “registration number” in so far as it relates to companies, close corporations and trusts may not be abbreviated in deeds. Registrars’ Conference Resolution 14 of 2008 ruled that abbreviations such as “reg number” and “reg no” are not permissible.

Issue 6 sent 13 May, 2009

It is no longer necessary to lodge a rates clearance certificate with expropriation and vesting transfers.

Issue 5 sent 29 April, 2009

An application in terms of Section 40 of the Deeds Registries Act for a Certificate of Consolidated Title must contain the extents of the properties that are being consolidated. The Certificate of Consolidated Title itself must however only contain the extent of the new consolidated erf and not contain the extents of the properties being consolidated.

Issue 4 sent 15 April, 2009

To record the change of name of a Company or a CC or the conversion between Companies and CC’s, you need to lodge

1. all Deeds of Transfer, Mortgage Bonds and all other registered documents registered in the name of the entity that has undergone a name change or has been converted into another entity,

2. a copy of the CIPRO certificate reflecting the name change or the conversion,

3. a certificate signed by a conveyancer stating that on a stated date he or she verified the certificate of name change or conversion on the CIPRO website and

4. the consent by the mortgagee, if any, to the name change or conversion

Issue 3 sent 01 April, 2009

A copy of the relevant notice in the Government Gazette must be lodged with any application to record the change of name of a natural person in terms of section 93 of the Deeds Registries Act. Registrars’ Conference Resolution 5 of 2008 confirmed that lodgement only of a certified copy of the Identity Document containing the new name is not sufficient.

Issue 2 sent 18 March, 2009

When must a General Power of Attorney be registered?

If a General Power of Attorney is meant to be used for more than one transaction it must be registered at the Deeds Office. It will be lodged in a separate lodgement cover and the Deeds Office will on registration allocate a “PA” number to that Power.  Where a General Power is only intended to be used once it is not necessary to register it and it will be lodged in the same cover as the transaction to which it relates.

If the General Power will be registered, then the Power of Attorney, draft Deed Of Transfer or draft Mortgage Bond lodged in respect of other transactions in the same batch must provide for the General Power number to be inserted.  The documents will refer to a person authorized by ‘… General Power of Attorney No PA…. singed at…”.

Issue 1 sent 04 March, 2009

In the event of a Power of Attorney for a Transfer or a Mortgage Bond being signed by a person authorized in terms of a Special or General Power of Attorney, the Power of Attorney as well as the draft Deed of Transfer or draft Mortgage Bond must refer to the Special or General Power.

The draft Deed or Bond must read as follows: “...duly authorized thereto by a Power of Attorney signed at Port Elizabeth on 17 February 2009 by Joe Soap, he being duly authorized thereto by a Power of Attorney signed at Harare, Zimbabwe on 31 December 2008 by Anne Soap, ID…”.

Sent 19 July 2011

An application for the registration of an extension of a section in terms of Section 24(6) of the Sectional Titles Act 95 of 1986 must be lodged with: