Thoughts Of The Week


I Was Awarded The House In My Divorce

When X, recently divorced, approached her conveyancer with an instruction to register transfer of the property that was awarded to her in the divorce settlement, she was speechless when she was advised that transfer duty will be payable. This because she was advised previously that the Transfer Duty Act exempted the transfer of property to a divorced spouse in terms of a divorce order.

The advice was correct. However, what differentiated X’s position was the fact that the property was registered in the name of a trust. The exemption in the Act applies only where the one spouse held sole ownership in the whole or a portion of the property, which is then acquired by the other divorced spouse in terms of the court order. In X’s instance, transfer duty was therefore payable by her as her divorced spouse was not the owner or co-owner, but the trust.

In addition, from SARS’s point of view, the ‘transaction’ occurred on the date that the divorce order was granted and X is therefore liable to pay transfer duty within 6 months after that date, failing which a penalty on the outstanding amount at a rate of 10% per year becomes payable. Make sure to ventilate all the details of your settlement with your divorce attorney, so that you are aware of the implications.

Contact our Family Law team at info@stbb.co.za.

Timing in Agreements: Year-End Considerations

As we approach the festive season, remember to pay close attention to the dates inserted in agreements for the sale or purchase of immovable property.
It is prudent to arrange that the due dates for payment of a deposit, obtaining bond approval and guarantees do not fall too close to public holidays as many people are on leave. In addition, role-players such as the deeds office, SARS and municipalities either close or operate with a skeleton staff and suggested registration dates should take these factors into account.

Attention to these details will manage the expectation of all the parties concerned and may prevent the failure of agreements due to the non-compliance with the due date obligations.

For assistance, contact you STBB conveyancer.

Does My Spouse Have a Duty to Maintain Me After Our Divorce?

In terms of our common law, spouses have a reciprocal duty to support each other during their marriage and this includes financial support. This duty ends when the marriage is terminated either by death or divorce.

In terms of the Maintenance of Surviving Spouses Act, a surviving spouse may claim reasonable maintenance from a deceased spouse’s estate.

The Divorce Act, on the other hand, makes provision for a spouse to claim maintenance on divorce. This is not an automatic right to spousal maintenance post divorce and the Divorce Act states that a court may grant an order for spousal maintenance. The factors that the court will take into account when determining whether or not a maintenance order should be made include, the financial means, earning capacity, financial obligations, needs and age of both spouses, the duration of the marriage, the spouses’ standard of living prior to the divorce, their conduct relating to the breakdown of the marriage and any other factor that the court may deem relevant.

For more information please contact the STBB Family Law Department.

When a Trust is Party to a Sale Agreement

Problem scenario:

The ABC Family Trust sells a sectional title unit to X. The trustees of the trust, authorised by valid Letters of Authority issued by the Master of the High Court, are A and his children B and C. A signed the agreement and provided the Letters of Authority and trust deed to the estate agent and purchaser, X. Trustee A subsequently reconsiders and, citing some dispute with the body corporate for thwarting efforts to obtain the levy clearance necessary for transfer, alleges that the Trust is unable to proceed. X consults his attorney as he believes the Trust is in breach.

Solution:

Scenarios similar to the above arise often in practice. The problem faced by X is that a Trust may only act through its trustees and as allowed by the trust deed. One trustee cannot act alone without the others. Unless A was authorised, in a written resolution granted by all the trustees beforehand, to sign the sale agreement, then the sale agreement was void. Depending on the circumstances, the purchaser may seek other remedies.

Speak to your STBB conveyancer for assistance in all your property transactions, before putting pen to paper.

Update On New Legislation That Will Impact SA’s Property Industry

Two Bills that will fundamentally impact South Africa’s property industry were expected to be passed by Parliament this year.

In September, the Portfolio Committee (Human Settlements) concluded its first stakeholder engagement meetings on the Property Practitioners Bill. A draft version hereof was first published in 2017 and a revised Bill was released in March of this year. The Bill seeks to, amongst other things, repeal the Estate Agency Affairs Act and to replace the Estate Agency Affairs Board with the Property Practitioners Regulatory Authority.

The window for commentary on the Electronic Deeds Registration Systems Bill closed on 5 October 2018. As its title states, the Bill seeks to introduce an electronic deeds registration system, specifically to ease registration of large volumes of deeds as necessitated by government’s land reform initiatives and to expedite the registration process in the deeds office.

STBB will update you as soon as the status of these Bills change. For more information, please contact us at info@stbb.co.za.

Maintenance for a Spouse After Divorce

When a marriage terminates after a divorce, the reciprocal duties of support which existed during the marriage come to an end.

Neither spouse has an automatic right to maintenance after divorce. However, a court granting a decree of divorce has a discretion to order one spouse to pay maintenance to the other spouse until the latter’s death or re-marriage or for any other period (rehabilitative maintenance), if it deems it just to do so.

In exercising this discretion to order payment of extended maintenance, the court will consider certain factors, including but not limited to: the means of the parties, their earning capacities, their financial needs, their age, the duration of the marriage and the parties’ standard of living during the marriage.

Contact us at info@stbb.co.za for assistance in dealing with the question of whether you could pursue a claim for spousal maintenance upon divorce.

Electronic Signatures and Deeds Registration

Recently the first ever property transfer transaction was registered in a deeds office in South Africa where the seller’s Power of Attorney to Pass Transfer was signed with an advanced electronic signature (AES).

What is an AES? It is a special ‘electronic’ signature (a scanned image of a handwritten signature, or ‘digital’ signature) which, in certain instances, may replace the traditional pen and ink manner to sign documents. In order to use such a signature on a document, one first has to have the AES accredited with an accreditation authority in South Africa.

Where a law specifically requires signature before a document will be considered legally valid, but does not specify that the signature must be in writing, the Electronic Communications and Transactions Act (ECTA) allows that an AES may be used. On the other hand, where a law requires a written signature, an AES will not suffice (eg, the assignment of copyright in terms of the Copyright Act, which that Act requires to be in writing).

Remember that agreements concluded in terms of the Alienation of Land Act are specifically excluded from ECTA and must therefore still be concluded by parties appending their written signatures thereto.

Why Antenuptial Agreements are Important

Our law determines that if you get married without having entered into an antenuptial agreement before the wedding, you are automatically married in community of property. Accordingly, the assets and liabilities of both spouses become part of their joint estate, with shared responsibilities and decision-making.

Simply agreeing to the contrary with a spouse may constitute a valid agreement between the spouses, but will not be enforceable against third parties.

If spouses want to address the risk of exposure to each other’s long term financial well-being, it is necessary to do so before the marriage, in an antenuptial agreement.

Contact us at info@stbb.co.za for assistance in drafting and registering an antenuptial agreement for you.

Water for Cape Town

Towards the end of June this year, the City of Cape Town promulgated amendments to its Water By-law. These do not replace the current Level 6 water restrictions, but are in addition to present water usage rules. Many of the amendments deal with technical aspects of installations and the City’s oversight of plumbers.

From the property owner and tenant’s point of view, the following are notable:

  • Landlords must record individual consumption in residential units let in a multi-tenant complex/block of flats, and inform the City of any contraventions.
  • In new developments, water conservation and demand management systems, or alternative water systems, must be installed. Prior approval of the City will be necessary.
  • Potable water storage tanks must be impervious to sunlight to prevent the growth of bacteria.
  • No cross-connection may exist on private property between potable and non-potable water systems.
  • No irrigation of gardens is allowed between 09:00 and 18:00, including from boreholes and well-points.
  • Toilet cisterns and shower head flow maximum capacity has been reduced to 6 litre cisterns for toilets (was 9 litres), and water flow from shower heads is limited to 7 litres/minute (was 9.5 litres/minute). Owners need not replace these immediately if they do not conform, but when renovations or alterations are considered, the new installations must be compliant.
  • All pools must be fitted with a cover to avoid evaporation when not in use.
  • Where renovations trigger a building plan approval process, full details of any water conservation and demand management system or alternative water systems must accompany the building plans.

The Water By-law and Amendment can be viewed here.

Contact STBB should you require a detailed summary of the current provisions, including the Level 6 restrictions.

Offshore Property and South African REITs

The South African listed property sector has exposure in more than 25 countries. 45% of the FTSE/JSE SAPY Index earnings come from outside South Africa and over 50% of listed property in SA is exposed to offshore markets.

To date, no SA real estate investment trust (REIT) has achieved true global exposure i.e.: being invested in all the major global markets in the world. Some REITs do, however, have large representative businesses in specific markets, for example, NEPI Rockcastle is the largest real estate firm in Central and Eastern Europe (CEE) and Growthpoint Properties Australia is the 11th largest REIT on the ASX.

Our REIT sector had a poor showing in terms of overall performance in the first quarter of 2018. According SBG Securities, global monetary policy shifts in developed markets sparked a broad sell-off in emerging markets.

For more information on the above, please contact STBB.

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