Property Law Update


Issue 33 – 2017

LAND EXPROPRIATION: DETERMINING VALUE OF THE LAND FOR COMPENSATION

Uys N.O and Another v Msiza and Others (1222/2016) [2017] ZASCA 130 (29 September 2017)

Should the future development potential of land to be expropriated be accounted for in the calculation of the market value of the property when determining the compensation to be awarded to the successful land claimant? The current owner in this matter thought so.

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The Judgment
Summary of the Judgment

 

STBB’S STSMA REFERENCE GUIDE

In this, the forty-second set of notes for your STSMA Reference Guide, Prescribed Management Rule 21 is discussed.

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Prescribed Management Rule 21
(N.B. Print in landscape)

Issue 32 – 2017

UNPAID RENTAL – WHEN A TENANT CANNOT CLAIM SET OFF

Tudor Hotel Brasserie and Bar (Pty) Ltd v Hencetrade 15 (Pty) Ltd (793/2016) [2017] ZASCA 111 (20 September 2017)

This matter addresses issues surrounding set-off of rental where a tenant argues that it did not receive vacant occupation of the entire leased premises. The lease agreement obliged the lessee to make payment of the rental ‘on or before the first day of each month’ and ‘without any deductions or set off whatsoever’, but the tenant argued that due to the principle of reciprocity, it was entitled to set-off nonetheless. The Western Cape High Court found in favour of the landlord and the present matter deals with the appeal to the SCA.

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The Judgment
Summary of the Judgment

 

STBB’S STSMA REFERENCE GUIDE

In this, the forty-first set of notes for your STSMA Reference Guide, Prescribed Management Rule 20 is discussed.

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Prescribed Management Rule 20
(N.B. Print in landscape)

Issue 31 – 2017

PRE-EMPTIVE RIGHTS: ‘IN WRITING’ NO LONGER A REQUIREMENT?

Mokone v Tassos Properties CC and Another (CCT113/16, CCT291/16) [2017] ZACC 25; 2017 (10) BCLR 1261 (CC); 2017 (5) SA 456 (CC) (24 July 2017)

It has for long been a rule of our law that pre-emptive rights relating to the sale of immovable property must be in writing in order to be valid and binding. In finding in this matter that the granting of a pre-emptive right is not an ‘alienation’ and therefore needs not comply with the “in writing and signed” requirements of the Alienation of Land Act, new considerations sprout. Property owners should be wary of making verbal representations with regard to pre-emptive rights in respect of immovable property to avoid a scenario such as in the present matter where a subsequent transfer of a property to a third party is attacked, 18 months later, because of an oral lease granted to a previous tenant.

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The Judgment
Summary of the Judgment

 

STBB’S STSMA REFERENCE GUIDE

In this, the fortieth set of notes for your STSMA Reference Guide, Prescribed Management Rule 19 is discussed.

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PPrescribed Management Rule 19
(N.B. Print in landscape)

Issue 30 – 2017

TITLE DEED CONDITIONS OBLIGING AN OWNER TO BUILD

Bondev Midrand (Pty) Limited v Puling and Another, Bondev Midrand (Pty) Limited v Ramokgopa (802/2016, 803/2016) [2017] ZASCA 141 (2 October 2017)

Developers often insert a provision in a purchaser’s title deed obliging him to build a home on the vacant erf within a certain time. There are various sound reasons for doing so, amongst others, to bolster purchasers’ investment in the development and limit the security risks sometimes associated with continuous building activities in a development. Failure to do so, gives the developer the right to repurchase the vacant stand, usually at the initial sale price. Is this a personal right on the side of the developer meaning that it prescribed if not exercised within 3 years after an owner has failed to erect a home?

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The Judgment
Summary of the Judgment

 

STBB’S STSMA REFERENCE GUIDE

In this, the thirty-ninth set of notes for your STSMA Reference Guide, Prescribed Management Rule 18 is discussed.

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Prescribed Management Rule 18
(N.B. Print in landscape)

Issue 29 – 2017

VALID CANCELLATION REQUIRES MORE THAN STATING THAT ANOTHER IS IN BREACH

Smith and Another v Patsalosavis and Another (85341/2014) [2017] ZAGPJHC 230(11 August 2017)

Procedural ‘formalities’ often crystallize from lessons learnt in everyday transacting. For the cancellation of agreements, unless stipulated otherwise, formalities dictate that the defaulting party must be given clear details of the alleged breach, be afforded a timeframe in which to rectify it, and must be advised of the other party’s right to elect, on a failure to rectify the breach, whether to keep the defaulting party to the agreement or to cancel it (and claim damages). This must be followed with a formal cancellation, if the breach is not addressed. This supports an understanding of the “why” and “how to” when things go wrong. Non-compliance with these rules is problematic, as this judgment shows.

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The Judgment
Summary of the Judgment

 

STBB’S STSMA REFERENCE GUIDE

In this, the thirty-eighth set of notes for your STSMA Reference Guide, Prescribed Management Rule 17 is discussed.

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Prescribed Management Rule 17
(N.B. Print in landscape)

Issue 28 – 2017

AGREEMENTS ARE NOT CHILD’S PLAY

Anthony and Another v Japies and Others (17614/2016) [2017] ZAWCHC 92(12 September 2017)

The facts of the dispute in this matter tell a story of many twists and turns in the sale of a property and evidence an absence of appreciation of the status of a validly concluded agreement. Here the seller of immovable property sold it to one purchaser and straight after to another purchaser. The second purchaser decided to take transfer, despite being advised that there may be a claim from the previous purchaser. A costly exercise for both the seller and second purchaser, as the judgment shows.

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The Judgment
Summary of the Judgment

 

STBB’S STSMA REFERENCE GUIDE

In this, the thirty-seventh set of notes for your STSMA Reference Guide, Prescribed Management Rule 16 is discussed.

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Prescribed Management Rule 16
(N.B. Print in landscape)

Issue 27 – 2017

HISTORICAL DEBT DEBATE PUT TO BED

Jordaan and Others v City of Tshwane Metropolitan Municipality and Others; City of Tshwane Metropolitan Municipality v New Ventures Consulting and Services (Pty) Limited and Others; Ekurhuleni Metropolitan Municipality v Livanos and Others (CCT283/16, CCT293/16, CCT294/16, CCT283/16) [2017] ZACC 31 (29 August 2017)

Last week the Constitutional Court ruled that new property owners cannot be held liable for historic municipal debts incurred by previous owners. Once ownership is transferred in a Deeds Registry, the local authority cannot demand a new property owner to settle historical debt or suspend municipal services due to outstanding municipal debt.

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The Judgment
Summary of the Judgment

 

STBB’S STSMA REFERENCE GUIDE

In this, the thirty-sixth set of notes for your STSMA Reference Guide, Prescribed Management Rule 15 is discussed.

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Prescribed Management Rule 15
(N.B. Print in landscape)

Issue 26 – 2017

UNAUTHORISED USE OF ‘SINGLE RESIDENTIAL’ PROPERTY AS GUESTHOUSE

Du Toit N.O. and Others v Coenoe 90 CC and Others (1584/2017) [2017] ZAFSHC 126 (2 August 2017)

Can neighbours take the owner of a property – on which a guest house is operated in contravention of municipal zoning regulations – to court for illegal use of the property, or must these zoning provisions be enforced by the local municipality? This is what happened here after the neighbours complained of alleged noise and disturbance caused by the guesthouse operations and guests.

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The Judgment
Summary of the Judgment

 

STBB’S STSMA REFERENCE GUIDE

In this, the thirty-fifth set of notes for your STSMA Reference Guide, Prescribed Management Rule 14 is discussed.

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Prescribed Management Rule 14
(N.B. Print in landscape)

Issue 25 – 2017

TELKOM INFRASTRUCTURE IN RESIDENTIAL ESTATES

Telkom SA SOC Ltd v Residential Estate Dennegeur (Pty) Ltd and Another (22032/2016) [2017] ZAWCHC 76 (26 July 2017)

This matter deals with an urgent application brought by Telkom against a Homeowners’ Association (HOA) and Vodacom, after the HOA permitted Vodacom onto the HOA’s premises to install a fibre optic network into Telkom’s existing telecommunications infrastructure. This was for the provision of fibre optic services to the owners in the estate as the HOA could not reach agreement with Telkom to provide such services. The question that arose here was whether Telkom was in “possession” of the underground ducts and cables so that it could successfully apply for “restoration of its possession”?

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The Judgment
Summary of the Judgment

 

STBB’S STSMA REFERENCE GUIDE

In this, the thirty-fourth set of notes for your STSMA Reference Guide, Prescribed Management Rule 13 is discussed.

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Prescribed Management Rule 13
(N.B. Print in landscape)

Issue 24 – 2017

STBB’S STSMA REFERENCE GUIDE

In this, the thirty-second set of notes for your STSMA Reference Guide, Prescribed Management Rule 11 is discussed.

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Prescribed Management Rule 11
(N.B. Print in landscape)

STBB’S STSMA REFERENCE GUIDE

In this, the thirty-third set of notes for your STSMA Reference Guide, Prescribed Management Rule 12 is discussed.

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Prescribed Management Rule 12
(N.B. Print in landscape)