Property Law Update


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)

Issue 23 – 2017

OCCUPIER’S CONSENT TO EVICTION NOT THE END OF THE ENQUIRY

Occupiers of Erven 87 and 88 Berea v De Wet N.O. and Another (CCT108/16) [2017] ZACC 18 (8 June 2017)

The Constitutional Court held in this matter that even where there was a purported consent by an illegal occupier to eviction, this did not absolve the Court from its duty to consider all the relevant circumstances and satisfying itself that it is just and equitable to grant the eviction order. It was required of a Court, as a first step, to be satisfied that the parties freely, voluntarily and in full knowledge of their rights agreed to the eviction. In addition, courts had to be alive to the risk of homelessness and the issue of joining the local authority to discharge any duties to provide alternative housing it may have.

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The Judgment
Summary of the Judgment

 

STBB’S STSMA REFERENCE GUIDE

In this, the thirty-first set of notes for your STSMA Reference Guide, Prescribed Management Rule 10 is discussed.

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Prescribed Management Rule 10
(N.B. Print in landscape)

Issue 22 – 2017

CAN UNDULY HARSH TERMS OF SALE AGREEMENT PERMIT CANCELLATION?

Binta v Hlasela and Another (1776/2016) [2017] ZAECPEHC 35 (11 July 2017)

It does not often happen that a sale agreement is entered into requiring the seller to pass transfer and then to wait for payment of the purchase price by way of a subsidy grant some time later. This provision in the present matter, together with undue delays by the authority issuing the subsidies and the fact that the purchaser took occupation whilst the agreement excluded the payment of occupational rental, moved the court to hold that terms of such an egregious nature justified the seller to resile from the agreement. This is an exceptional remedy in extraordinary circumstances as our law generally requires of contracting parties to perform in terms of the agreements they put their signatures to.

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The Judgment
Summary of the Judgment

 

STBB’S STSMA REFERENCE GUIDE

In this, the thirtieth set of notes for your STSMA Reference Guide, Prescribed Management Rule 9 is discussed.

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Prescribed Management Rule 9
(N.B. Print in landscape)

Issue 21 – 2017

FUTURE RATES IN CLEARANCE CERTIFICATES: NOT PERMITTED SAYS SYSTEMS ACT

Nelson Mandela Bay Municipality v Amber Mountain Investments 3 (Pty) Ltd (576/2016) [2017] ZASCA 36 (29 March 2017)

Local authorities usually include a certain amount of future (estimated) rates when issuing figures payable for a rates clearance certificate to be issued. This is generally assumed to cover the seller’s future rates liability from the date the certificate is issued up to the time of transfer. In this instance, the municipality charged the rates payable for the full financial year. The question addressed here was whether, for purposes of issuing a rates clearance certificate, the seller of immovable property could legally be held liable to pay the full annual rate on the property or only the rates calculated until the property is transferred.

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The Judgment
Summary of the Judgment

 

STBB’S STSMA REFERENCE GUIDE

In this, the twenty-ninth set of notes for your STSMA Reference Guide, Prescribed Management Rule 8 is discussed.

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Prescribed Management Rule 8
(N.B. Print in landscape)

Issue 20 – 2017

CHANGING YOUR MIND ON THE OTHER’S BREACH OF CONTRACT

Primat Construction v Nelson Mandela Bay Metropolitan Municipality (1075/2016) [2017] ZASCA 73 (1 June 2017)

Our law generally holds that if party A repudiates a contract, party B may choose to abide by the contract and enforce A’s performance; or accept the repudiation and cancel the agreement and claim damages from A. Once the choice is made, B cannot turn around and change his mind. However, as was argued in this case, would B be allowed to change tack and cancel the agreement and claim damages if A persisted in the breach by evincing an unequivocal intention not to remedy the breach?

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The Judgment
Summary of the Judgment

 

STBB’S STSMA REFERENCE GUIDE

In this, the twenty-eighth set of notes for your STSMA Reference Guide, Prescribed Management Rule 7 is discussed.

read more
Prescribed Management Rule 7
(N.B. Print in landscape)