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)
Finding the right home is not only about finding an architectural structure that meets your requirements (three bedrooms, sun in the afternoon, a yard for the dogs, access control for the kids, etc.). The search is as much about finding a community you want to become a part of. For many residents, the community that surrounds them is governed by an entity known as a homeowners’ association (HOA).
HOAs are created in full title or freehold housing establishments and are, at their core, responsible for the wellbeing of a residential area and the community that exists within its boundaries. An HOA will fall into one of two categories: a non-profit company or a common law association. When registered as a non-profit company, the HOA will be governed by the Companies Act and must appoint directors to manage its affairs. A common law association, on the other hand, is created informally and offers more leniency in its management, which is overseen by trustees instead of directors. While the formation of a common law association is indeed simpler, is does lack the security, accountability, and clout found in a registered non-profit company.
The responsibilities of the HOA include ensuring the upkeep of infrastructure and the creation of rules that ensure a harmonious living environment. The main purpose of these rules are to create a community that values the lifestyles and aesthetic preferences of the homeowners that reside within it and to create a sense of harmony. It is important for interested homeowners to familiarise themselves with the restrictions of the Memorandum of Incorporation (MOI) to ensure that they are comfortable with adhering to rules.
The rules created by the HOA are contained in its MOI, which should be made available to all new homeowners who move into the area. The rules of an HOA can include items such as quiet hours and regulate parking on sidewalks but can also include items that promote uniformity, such as what colour the exterior of a property may be painted and what flora may be planted in publicly visible areas.
When moving into a residential area run by an HOA, homeowners are required to become members of the HOA and will usually be required to pay an HOA fee. These fees primarily go towards the upkeep of the community’s infrastructure, including the maintenance of lawns and common areas, such as play areas and parks.
An aspect that is often overlooked when considering the scope of the HOA’s role, is the promotion of community building. Community activities and social events, such as yoga classes, book clubs, and even the classic braai, should be arranged by HOAs to bring the community together. HOAs can also promote activities such as recycling and encourage more environmentally conscious behaviour.
It’s clear that homeowners’ associations can play a vital role in the creation and wellbeing of communities when approached correctly. If you want to learn more about the creation of a homeowners’ association or have questions regarding the one you are a member of, get in touch with one of our professional property practitioners to assist you.
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)
Original article: Gustav Barkhuysen Attorneys - The role of homeowners’ associations
Home insurance is there to protect one of the most important assets you own. And when done properly, it will allow you to insure both the structure of your home and the life that is lived within its four walls.
Home insurance can be divided into three sections: Building Insurance, Home Contents Insurance, and Personal Valuables Insurance. The purpose of Building Insurance is to cover only the structure of your property, and Home Contents Insurance covers items such as appliances and furniture that stay within the home, while Personal Valuables Insurance covers the household items that travel with you out of your home, such as cell phones and laptops.
To ensure that your home insurance policy covers you as best as possible, you should understand your cover fully and assess its accuracy over time as your property changes.
Check your liability limit
It’s important that you should be covered realistically, which is why comprehensive coverage is always advisable. When you consider the costs of rebuilding your property or replacing its contents, the numbers can quickly add up, and you need to be sure that you are covered adequately should you need it.
Cover for natural occurrences
While damage caused by natural disasters, such as hurricanes and tornadoes, is usually covered by insurance policies, other natural occurrences may be excluded. When you live near areas that are prone to natural influences, such as a riverbank or known fault line, you need to find insurance that will cover you should damages arise due to these natural causes.
Update it as you go
Your policy is based on the contents of your home, and should this change, your policy should also be updated accordingly to reflect its latest status. The presence of a piano or original piece of art in your home, for instance, can increase your instalment substantially. So, if you decide to sell an item of substantial financial worth, make sure to update your policy to avoid paying for cover of an item you no longer own. When you add something, on the other hand, updating your policy is just as important, as major items (especially high-value ones) will not be covered if they are not explicitly included in your policy.
Specify your structures
Knowing which structures are covered by your policy can save you a lot of hassle and financial turmoil. Many insurance policies cover only the main dwelling structure, the home itself, and do not cover any damages to, for instance, garages, swimming pools, or lapas. Keeping your policy simple may save on instalments and may be prudent when the other structures on your property are not of high value. But when the additional structures on your property are of high value, it is usually advisable to include them in your policy.
While most home insurance policies are rather comprehensive in their cover scope, there are a few items that are most often not covered by insurers. Coverage is often limited/not granted in the following instances:
Home insurance may not be something you look forward to utilising, but the old proverb is highly applicable here: it’s better to have it and not need it, than need it and not have it. If you’re looking for new home insurance or want to update yours to be more comprehensive, make sure to contact us for the advice you need.
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)
Original Article: Gustav Barkhuysen Attorneys - Know how to make the most out of home insurance
Purchasing a home is one of the biggest decisions most people will make in their lives. It makes sense then that this endeavour should be approached with diligent consideration and care. While the necessary assistance of professionals, who will help you make the best decisions along the way, is highly advisable for this journey, there are a few tell-tale signs you can spot yourself that will help you identify whether a property deserves another moment’s consideration.
Once a house become a showhouse, a magical veil is drawn over a mundane property that allows it to appear like a home right out of a movie or magazine. It’s undeniable that first impressions leave lasting impressions, which is exactly why homeowners may try to cover up any defaults by dazzling you before you find out something is amiss. It is important to not let first impressions affect your judgement.
Because of this, it is vital that you investigate thoroughly.
If you are serious as a buyer, and the seller is serious about selling, the seller should not have a problem with allowing you free reign through the property (even if it is supervised by them). Like a real estate Indiana Jones, you should explore every inch of the property. Open doors, flush toilets, test the taps, flip every switch you can find, jump on the floors (especially upstairs) - go all out.
During this exploration, it’s important to pay attention to cracks, even minor ones, and doors that struggle to close. These occurrences may indicate foundational problems. When you find either of these, it is best to have a structural survey completed beforehand. You should also pay attention to any fresh coats of paint, especially when found in selected patches. If an entire room has been repainted, it is advisable to enquire as to the reason for the repaint, but when a patch of paint is visible it usually indicates an area where damage has been patched up. Getting to the bottom of such damages is important.
As you travel from room to room, it is also good to get a feel of the climate within the house. You shouldn’t have to imagine what a room would feel like once you have a new air-conditioning or heating system installed. If the house’s interior temperatures are not accommodating, you need to consider to what extent this will influence you.
Once you’ve done the rounds inside, remember to take a tour of the exterior as well. It’s a given that you should inspect the condition of the yard and the roof, but you should also ascertain the state of the neighbours’ properties where possible. This will not only help you get a feel of property itself, but also of the community that will ultimately affect your living experience and the value of your property.
All of that said, it is also important to be able to see beyond minor shortcomings and the current state of things. An unkempt yard, unvarnished kitchen counters, clutter throughout the house – these are all factors that can be given the necessary attention in time. When you tour a property, it is important to envision your home, as you would want it. While there are various deal-breakers, especially when it comes to structural security, there are also many shortcomings that may make a bad first impression that should not inhibit you from seeing the potential of the property.
Go in with a plan. Ask questions. Demand answers. It’s your future home – it’s worth the trouble.
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)
Original article: Gustav Barkhuysen Attorneys - Exploring a potential property
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)
We have received the following notification from the City of Cape Town regarding building plans.
In short:
When sellling your house, homeowners are required to ensure that the approved building plans on record at the Municipality correctly reflect the building structure of your property and that all alterations have been approved.
The City of Cape Town requests all homeowners to ensure that these plans are current and all buildings have been authorized.
If you do not have a copy:
Should you have made unauthorised alterations, you need to get a draftsman or architect to draw up plans and have them submitted.
Please call us if you need any more information or assistance.
See the article below:
1 FEBRUARY 2019
MEDIA RELEASE
City advises on how to obtain your building plan
The City of Cape Town encourages all building owners to ensure that they have a copy of their approved building plans. Having these plans readily available will prove to be very helpful when wanting to make extensions, additions or alterations to a building or when the opportunity to sell arises. Read more below:
As the authority responsible for ensuring a safe and healthy built environment for all residents and visitors in Cape Town, the City holds approved building plans for existing buildings in the city. Property owners or architects that have the necessary power of attorney may obtain copies of these plans from the City before preparing a building plan submission on any previously approved building plans.
It is also customary for property owners to have their building plan available when selling their home. In the case of owners wanting to sell a building, they need to ensure that the property is in the same condition as reflected on the existing approved building plan. In cases where unauthorised alterations have been made, owners are encouraged submit the necessary plans to regularise the unauthorised alteration before the sale and transfer of ownership takes place. In some instances, an owner may be liable to pay an administrative penalty for unauthorised building work. Building plans also form an important part of various processes which include the insurance of properties.
‘The City’s Development Management Department offers a decentralised service delivery system to ensure that our services are available closer to communities. All building owners are therefore able to obtain hard copies of their building plans at our various district planning offices across the city.
‘Customers simply have to complete the plans request form which is available on the City’s website, pay the search fee and obtain the plan at the nearest district office. Each building owner has a business partner number which can be found on your municipal account. Please remember that this number is an essential requirement when requesting a copy of your plan,’ said Mayoral Committee Member for Spatial Planning and Environment, Alderman Marian Nieuwoudt.
It’s important to note that there are certain instances where the City may not have a copy of a previously approved building plan on record. If for any reason plans of a particular property are not available, it is the responsibility of the registered owner to have the as-built structures measured and drawn up.
In terms of submitting building plans and land use applications for approval, residents, architects and developers can do so by submitting applications via the Development Application Management System (DAMS) which conveniently allows for the electronic submission, processing and tracking of building plans and land use applications via e-Services on the City of Cape Town website.
‘We are also currently in the process of enhancing the DAMS which will then allow customers to obtain their building plans online. The City is moving towards online submission via e-Services as the only mechanism for the submission of building plans and land use applications therefore we encourage anyone intending to submit planning applications in the future to register for the department’s services on e-Services,’ said Alderman Marian Nieuwoudt.
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.
This by-law only applies to properties in the COCT and was published in the Government Gazette on 20 July 2018.
The changes furthermore indicate that as with boreholes, well points and wells must now also be registered. You now need to apply for consent from the Department of Water and Sanitation in terms of section 39 of the National Water Act1998 (Act 36 of 1998) if you want to sink a well; well point or borehole.
Failure to comply with this water-by law can land you in jail for up to FIVE years and you can be fined!
For more information, please go to: http://resource.capetown.gov.za/documentcentre/Documents/Bylaws%20and%20policies/Water%20Amendment%20By-law%202018.pdf
This summary was kindly provided by Robert Krautkrämer from MILTONS MATSEMELA ATTORNEYS
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A recent High Court judgment (Stand 278 Strydom Park (Pty) Limited v Ekurhuleni Metropolitan Municipality) confirmed that:
This case brings some relief to those owners who have been in lengthy disputes with their municipality regarding debt incurred by the previous owners of the property.
When a property is sold and in the process of being transferred to the purchaser, it frequently happens that the municipality does not recover all of the arrears from the seller but nevertheless issues a rates clearance certificate to the transferring attorney.
After transfer of the property to the new owners, the municipality then realises that the previous owners’ rates and taxes in respect of the property are still in arrears. The municipality then attempts to hold the new owners of the property liable for payment of the historical debt.
The new owners, unaware of their legal rights, are bullied into making payment arrangements with the municipality to pay off the previous owners’ debts because they fear that their water and electricity supply will be cut off, or worse, that they might lose their property.
Remember that the purchasers are not liable for the previous owners’ municipal debts and it is unlawful for the municipality to cut off water and electricity supply to the property because of such debt.
Purchasers are advised to seek urgent legal advice in the event that they are faced with letters of demand for the payment of the previous owners’ municipal debts and/or threatened with the termination of their municipal services.
From Bissets, Boemke and McBlain Attorneys, Notaries and Conveyancers (May 2015)[/vc_column_text][/vc_column][/vc_row]