Information obtained from GB Law Attorneys
Your house has been sold and you are required to hand over the original title deed to the conveyancing attorney. The property is not burdened with a bond over it. After a diligent search, you discover that your original title deed is lost. However, the original title deed is required at the Deeds Office to transfer the property to the purchaser. What now?
Before the transfer takes place, the owner (seller) must make a written application to the registrar of deeds, requesting a certificate of the registered title (CRT) of the land in terms of Section 38 of the Deeds Registries Act 47 of 1937.
The application must be accompanied by an affidavit attested to by the owner of the property.
Upon receipt of the application and affidavit, the registrar of deeds must publish a notice that he/she intends to issue the certificate of registered title. The notice must be published in two consecutive ordinary issues of the Government Gazette and two consecutive issues of a newspaper printed in the area where the property is situated. The owner of the property is responsible for the expenses related to the publishing of the notice in the Government Gazette, the newspapers, and the attorney’s costs in drafting the application and affidavit on behalf of the owner.
The draft certificate of the registered title must lie open for inspection at the Deeds Office, and after six weeks have elapsed, the certificate will be lodged for examination by the registrar. Should the registrar not receive any objections from the public or any interested party regarding the issuing of the certificate of registered title, the registrar will issue the certificate of title subject to all conditions, servitudes, leases and any other encumbrances that may exist in respect of the property.
The issued certificate of title would now serve as the title deed of this property, thus the transfer process of the property may proceed.
In terms of Section 38, the above application may further be used when the original title deed is either destroyed, incomplete or unserviceable, for example, if a page/pages are missing, illegible, or torn.
Section 38 may further be utilised to issue a certificate of registered title, should several title deeds (all registered in the same owner’s name) be lost or destroyed. One certificate of registered title will be issued in respect of all the title deeds that have been lost or destroyed.
If the Deeds Office copy of the title deed is lost or destroyed, but the owner’s copy is not lost or destroyed, the provisions of Section 38 cannot be invoked and the owner’s copy must be utilised to reproduce the Deeds Office copy.
Documents relating to properties are very important and thus need to be safely kept and protected from any harmful weather or other harmful elements that may destroy the document or render it unserviceable.
Reference List:
THE PRACTITONERS GUIDE TO CONVEYANCING AND NOTARIAL PRACTICE (ALLEN WEST)
DEEDS REGISTERIES ACT 47 OF 1937
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your adviser for specific and detailed advice. Errors and omissions excepted (E&OE)
See follow-up articles for more in-depth discussions on each certificate or contact us.
1. Electrical Certificate: valid for a period of two years
It is compulsory to be in possession of a Electrical Certificate of Compliance (ECOC) when selling your home as regulated by the Occupational Health & Safety Act, 1993 read with the Electrical Installations Regulations 2009 (as amended from time to time) and verifies that the electrical work and installations on the property are safe and up to standard as required by the South African National Standards.
The certificate covers distribution boards, wiring, earthing and bonding of all metal components (including antennae and satellite dishes), as well as wall sockets, light switches and the isolators of fixed appliances.
It does not cover fixed appliances like geysers, stoves, motors, fans, under-floor heating. However, we advise that you ask your electrician to inspect the geyser to cover potential defects.
2. Electrical Fence System Compliance Certificate: valid for a period of two years
This is a compulsory certificate and separate from the electrical certificate since it falls under the provisions of a separate set of regulations: The Electrical Machinery Regulations of 2011 (also issued under the Occupational Health and Safety Amendment Act, No. 181 of 1993.).
The system has to be certified by an approved installer.
3. Certificate of Compliance of Water installation: valid for a period of 6 months.
This certificate is Compulsory for all properties situated within the City of Cape Town’s municipal area as regulated by the City’s Water By-law which came into effect in 2010. It requires you to be in possession of a Certificate of Compliance of Water Installation.
It is designed to limit water wastage and to protect buyers from latent defect claims and high water bills due to leakages.
Amongst others, the certification covers
Bear in mind that a water installation certificate is not a plumbing certificate - it does not cover all aspects of the home’s plumbing or leaks from waste or sewer water or drainage.
4. Gas compliance: valid for a period of five years - new certificate required on each transfer
The Gas Compliance Conformity Certificate is compulsory should your home be fitted with gas appliances to comply with the Pressure Equipment Regulations of the Occupational Health and Safety Amendment Act (the regulations came into effect on 1 October 2009).
It certifies that your gas installation is in a safe, working condition, that emergency shut-off valves have been correctly installed, and that the system is free of leaks.
5. Beetle certificate: Valid for a period of 6 months
The beetle certificate has become standard practice especially in houses with wooden floors, doors and windows. It is often a condition written into the sale agreement in older homes or coastal areas. It is usually not required for sectional title properties or properties situated inland where beetle and woodborer problems are less common.
However, many banks and insurance companies will require a beetle clearance certificate when a property is transferred to a new owner.
6. Small Scale Embedded Generation (SSEG) installation - solar photovoltaic
You are required to apply for authorisation from the City before installing an embedded generation system such as a rooftop solar photovoltaic (PV). This Certificate should have been issued by the installer and can be transferred to the new home owner.
The authorisation process applies to small-scale embedded generation (SSEG) systems with a generation capacity smaller than 1 mega-volt ampere (MVA) and embedded generation (EG) systems with a generation capacity of more than 1MVA and less than 100MVA in properties within the City of Cape Town electricity supply area. The most popular technology is solar (PV)
See City of Cape Town website for more detailed information:
Also known as a certificate of conformity, a gas compliance certificate provides proof that the gas installation has been installed safely and according to standard, is in safe working condition and free from leaks or other potentially dangerous issues.
Regulation 17(3) of the Pressure Equipment Regulations, as per the Occupational Health and Safety Act of 1993, states that a Gas Certificate of Conformity must be issued when there is a transfer of ownership for a property. This came into effect in October 2009.
In order for a certificate to be issued, the gas installation has to comply with the SABS Regulations for liquefied petroleum gas (LPG) installations (SANS 10087–1, as amended).
Gas installations include all fixed or built-in appliances such as:
What isn’t covered by a Gas Compliance Certificate?
All appliances e.g. ovens, stoves, instant water heaters, fireplaces, space heaters, etc.
All portable gas braais or gas heaters, which do not need a gas certificate of conformity.
With every new transfer of ownership of a property with gas installations, a new gas compliance certificate is required.
However, gas appliances and installations should undergo routine maintenance at least once a year, and with this, a new certificate should be issued.
The gas installation must meet certain requirements before it qualifies for a gas compliance certificate:
(Information obtained from The Gas Works – Gas Installations Cape Town info@thegasworks.co.za)
Changes to the City of Cape Town Electricity Supply By-Laws of 2010 now make it compulsory to register certain solar installations with the City. This affects all properties that fall within the City of Cape Town municipal boundary.
Over the past few years, the City of Cape Town has seen a rapid uptake of rooftop solar photovoltaic (PV) installations and encourages all home and business owners with these installations to register both grid-tied and off-grid small-scale embedded generation (SSEG) systems by 28 February 2019.
Connecting an SSEG system to the grid can pose a safety risk and, for this reason, the City must ensure that all generating equipment is approved and installed correctly.
SSEG systems (or small-scale embedded generation systems) are any devices or machinery that are designed to generate and supply electricity to an electrical installation, such as home or business. The most popular of these systems are Solar Photovoltaic systems.
Solar Photovoltaic (PV) technology uses the light energy from the sun to generate electricity that can be used in your home.
They can be divided into four main categories:
1. Grid-tied feed in PV systems: They have PV panels that are connected directly to an inverter. The electricity it generates is used locally on the property or fed back into the electricity grid, when excess electricity is generated.
2. Grid-tied hybrid PV systems: They are able to disconnect the incoming supply and connect the load to the PV system or stored energy in batteries. These systems can operate in load-shedding scenarios.
3. Grid-tied PV systems with reverse power blocking: They provide electricity to the property when there is a demand for it, but blocks any excess electricity generated from feeding back onto the grid.
4. Standalone or off grid PV systems: They usually have batteries and a charge controller. The system feeds electrical circuits on the property that are wired completely electrically separate of the electricity service provider’s grid.
We wish to thank Robert Krautkramer from Miltons Matsemela Attorneys for this memo.
On 1st August 2014, the Minister of Environmental Affairs published the Alien and Invasive Species Regulations which come into effect on 1st October 2014. A list of Alien Invasive Species was also published and the list can be found at http://www.invasives.org.za/legislation.html.
A total of 559 alien species are listed as invasive in four different categories, and a further 560 species listed as prohibited and may not be introduced into the country. The species relate to fauna and flora.
The main aim of the legislation is prevent more alien invasive species coming into South Africa and the new regulations are intended to halt the spread of potentially devastating species. Invasive Alien Plants (IAPS) are a major threat to biodiversity, human livelihoods and economic development. Many IAPS are products of unwise and unintentional plant introductions, however if new invasions are discovered before they are well established, eradication is possible and management costs are greatly reduced.
The second main focus is on the early detection of and the rapid response to emerging invasive species. These are listed in category 1a and require immediate control by all land owners.
The third main focus is to address the established invasive species that are most harmful and destructive and these are listed in category 1b.
The fines and penalties for non-compliance with the regulations can attract a fine not exceeding R10 million or imprisonment not exceeding 10 years. However, from the regulations, it would appear that the idea is to obtain co-operation and the fines and penalties will only become applicable if the landowner refuses an authorised official from the Department to enter onto the land to monitor, assist or implement the combating; control or eradication of the species, or flatly refuses to comply with the regulations after due notice.
How will the regulations impact upon the seller of a property?
In terms of Regulation 29:
1. If a permit holder sells the property on which an alien listed invasive species is under the permit holder’s control, the new owner of such property must apply for a permit in terms of the Act.
2. The seller of any immovable property must, prior to the conclusion of the relevant sale agreement, notify the purchaser of that property in writing of the presence of listed invasive species on the property.
The purpose behind the regulations is to ensure that coherent control programmes are run and maintained.
Most of us would not know a Cardiospermum grandiflorum (balloon vine which is a Category 1b species) from a Cardiospermum halicacabum (lesser balloon vine – Category 3) unless we are told. So needless to say, if the seller is unaware of the presence of a listed invasive species, then the regulation cannot be complied with and it would not be right for a purchaser who subsequently becomes aware of the invasive alien, to hold the seller responsible after sale of the property.
For this reason we advise that reference to plants and vegetation be included in the acknowledgement by the purchaser that he has acquainted himself fully with the extent and nature of the property he is buying and that he accepts it as such.
The estate agent should request Sellers to confirm in writing whether they are aware of, or hold any permits in respect of any alien invasive species located on the property. If the Seller advises being aware of any alien species, or confirms that he holds a permit, then the estate agent can give a copy of this confirmation to a prospective purchaser who submits an offer on the property, in which event the offer should include an acknowledgment by the Purchaser to the effect that the Purchaser has been advised of the invasive species presence on the property.
Article obtained from http://esilaw.co.za/invasive-alien-plants-property-owner/
Resources: “Invasive alien plants and the property owner” written by Maria Davey from Meumann White Attorneys (shortened article) and Miltons Matsemela Newsflash (Invasive Species) – October 2014