Dust off that picket fence, we’re talking property law…
So you’ve got a white picket fence gathering dust in the garage of that 2 bedroom townhouse that you’re renting at an exorbitant fee, and you’ve finally decided to take the plunge and become a homeowner. Oh, of course, the realtor ads always make it look so easy – see home, sign, get keys and start the montage of putting your new home together.
But in reality, there is a lot of background paperwork, legalities and often overlooked nitty-gritty details that apply to property law. In this newsletter, we’re going to give you a quick snapshot of property law is as it pertains to real estate – whether you’re an established landlord, tenant or first-time buyer, this may contain invaluable information to you. Interesting fact, but did you know that property law is somewhat unique in the fact that it rides a line between private and public law - probably because of vast the field is.
First, let’s talk about the process of buying or selling a home. Of course, if you’re working with a qualified real estate agent, most of the following paperwork will be done for you, but it is always better to know just what you’re signing, lest you’ve accidentally included the family cat in the sale.
So, in order to buy or sell a house, a purchase offer must be drawn up, and it must be in writing as verbal agreements are not accepted under South African law. Once this purchase offer is in place, there is normally a 10% deposit paid out within 7 days. The purchase to offer is converted into a deed of sale once the seller signs it – special conditions may be added here depending on the agreement.
Thereafter, the deed of sale goes to a conveyancer, whose job it is to make sure that all documentation is in order for submission to the Deeds Office (upon payment of the related costs to do so), and this includes obtaining a Municipal Clearance Certificate for rates and taxes. In the case of a mortgage, the services of a bond attorney should be enlisted to settle disputes or issues – talk to us about getting in touch with a bond attorney today. Since June 2006, The National Credit Act 34 of 2005 came into effect to regulate reckless lending and protect consumers who may be overburdened by debt - a wise move by the Government in a global property downturn.
The whole process can take almost 3 months, perhaps more depending on circumstances. So you see, not as easy as falling in love with a fireplace and getting the keys the next day – and if this happens, please talk to a lawyer about the legality immediately!
Ok, so you’ve got the house purchased, all the paperwork is squared away and you’re just about ready to hang up your oil painting of your late grandmother when you realise the lights are off, and not coming on. Because you haven’t done municipal paperwork required when buying a home! To avoid that, let’s talk about municipal accounts and any possible hiccups that may occur.
First of all, don’t let anyone convince you that you are responsible for any outstanding bills related to previous owners. Therefore when you go to get the lights reconnected you should only pay for that and your own consumption, rates, and services going forward. Surprisingly this only became enforceable in 2017, after the Constitutional Court laid down the law regarding this.
Now let’s break down what you need to open or close a municipal account:
- Upon registration at the Deeds Office, the buyer or their transfer attorney needs to inform the municipality of this transfer. The deeds office will also do so within 10 weeks, to ensure that their systems are up to date – but bureaucracy hardly runs smoothly and this may be overlooked.
- This is where the seller has to bring their part and make sure that they have closed their rates account – but only after the buyer has opened a new account so that there is always an account that the municipality can link a property too.
- Remember the following when going to open a rates account:
- Letter from the transferring attorney confirming the sale
- Make sure you receive an account number
Now as it happens, disputes may arise and there is legislation in place specifically for this. The Municipal System Act 32 of 2000 allows customers to lodge disputes regarding their municipal accounts. Should you find yourself paying for enough electricity to power a second power station in your backyard, you have every right to query this and dispute the amount charged to you. After all to err is human and zeros like to insert themselves where they don’t belong. It is best to do so in writing and to hand deliver it to the municipality manager, just in case
Ok, so perhaps you’ve fallen out of love with the home you’ve purchased or you’ve moved onto something bigger. Now you’re ready to become a landlord and allow someone else the joy of living in your property. Of course, you could rent it out privately or allow a rental agency to take care of it for you – it just depends on how much free time you have for paperwork, inspections and repairs.
Now as a landlord you have rights afforded to you, but in turn, so do your tenants. This topic is incredibly varied and is constantly evolving as it governed by both legislation (The Rental Housing Act 50 of 1999) and common law – again we see property law straddling two legal worlds. To keep it short, when renting out a property, you essentially enter into a contract (lease agreement) with the tenant, in which the conditions for rental, duties, rights, rental amount, notice periods and maintenance rules are laid out.
Let’s look at a few examples:
- The amount paid for deposit must be held in a trust that accrues interest, and cannot be used toward late rental fees.
- Always perform a joint incoming and outgoing inspection and make a snag list of damages. This protects both the tenant and the landlord in case of damages.
- A landlord may not make alterations to the property without informing the tenant and the tenant may only make alterations with the explicit permission of the landlord. So, no one’s going to be knocking down walls at midnight without everyone knowing about it.
- A tricky one is maintenance because it can be somewhat nuanced in terms of who is responsible for what. Obviously, a landlord need not replace a broken light bulb, but a tenant shouldn’t be responsible for fixing a cracked wall. This should be very clearly defined in the lease agreement.
The rights of tenants have increased in the last decade and as a result, landlords find themselves at odds with stubborn tenants who take these rights too far. Should you find yourself dealing with a tenant dispute, talk to us about finding an attorney to help you resolve the issue.
Of course, maybe you aren’t moving and just want to upgrade your home, or have it zoned for business. But before your mother-in-law can run her home-spa from the newly renovated garage space, you need to make sure you’re compliant and have all the right permits and forms in place. But in order to rezone your home, you may be in for a mountain of paperwork and hassles, unless you’ve got access to a legal professional who can guide you through the process – someone we can easily put you in touch with. Now, let’s say you’ve applied for zoning scheme departure or special consent from the City Council, that’s great. But have you advertised this intent in your local newspaper? After all, residents in the area must have a fair chance to have their say on the matter. Has your mother-in-law secured a trading licence yet? These are only a handful of questions that barely scratch the surface when comes to building or zoning disputes. This is an area best entered into with the help of a lawyer.
Now speaking of neighbours who need to have a say, have you had any disputes with your neighbours? Have you tried talking it out over a drink? Did the cake not even sweeten the deal? Are they still making noise late into the night? Don’t worry; there are legal means to deal with neighbour disputes in South Africa. Of course under South African law, everyone is free to use and enjoy their property, provided it does not infringe the rights of another. Not being able to sleep for a week straight is certainly an infringement.
A popular way to do so is to approach the situation through a mediator in order to come to a resolution – this is less costly and time-consuming and is still legally enforceable. Of course, if this does not work, the courts are there to help homeowners struggling with nuisance neighbours on the grounds that their behaviour falls outside the scope of reasonability. It is best to speak to a lawyer here to determine if there is a case and what the best course of action is – we can put you in touch.
And of course, we can’t talk about property law without venturing into some controversial territory regarding land expropriation and land invasions. You see there seems to be some confusion regarding the current developments regarding land expropriation, which is still on-going and the concept of land invasion. The two do not go hand in hand, South Africa’s current property laws and the constitution still protects the rights of landowners when their property is invaded. Even President Ramaphosa has made it clear that land grabs will not be tolerated. In fact, homeowners have the right to approach the courts for an eviction order in compliance with the Prevention of Illegal Eviction From and Unlawful Occupation of Land Act19 of 1998.
Clearly, the topic of properly law is large and it makes sense that there are professionals who have made this their chosen field of study. As we said this is but a brief look into it, so for further insights please reach out to us, and we will put you in touch with a property law expert that can better advise you.
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