Make your deals binding - Alterations to sale agreements need to be agreed to

Earning commission on a property sale only works if the sale is valid and the criteria for earning commission is satisfied.. read more in our latest newsletter.

You can also join our Facebook group for regular updates..  https://www.facebook.com/groups/192450424104156/

Regards,

Mark Leathers and Dave Mc Naught

Partners - Mc Naught and Company

New Luxury Development being attended to by Mc Naught and Company

The Summit is a new, luxury property development in a rapidly growing area of Amanzimtoti, KZN.

The development is being brought to you by the Alleyroads group, an experienced property developer and naturally, they have partnered with ourselves as a leading KZN conveyancer to bring you this wonderful property development as seamlessly as possible.

Check out The Summit website for all the information, sales agreements etc. and you can also contact our offices for any info.

Budget 2016 - Wonderfully stable for the property market!

The Minister of Finance has completed his 2016 budget speech and the news is overall far more muted than most of us expected.

Aside from raising a few taxes on the periphery and bringing in a new tyre tax and even a tax on sugar next year, not much has changed.

Once small change which affects the property market is that the transfer duty rate on property sales above R10million has been hiked by 2%. This will not affect the majority of residential buyers and we therefore do not see it having any impact on the property market in the next year.

The new transfer duty rates effective 1 March 2016 are:

Remember, the date of sale is the date which determines your transfer duty amount payable, so if you are intending to purchase in the R10million and above bracket, make sure you conclude your sale before the 29th of February!

Our contact details are available on our website and you can let us know if you have any queries regarding the transfer duty changes, or in fact any other aspect of the budget speech.

First time buyers now have a great time to buy

When looking at the average prices of properties being purchased by first time buyers over the past 24 months and then the past 12 months, we see that price increases in the bracket are slowing down.

Two years ago, the average price in this bracket increased nearly 5% whereas over the past year we have seen a much more manageable 2.4% increase.

This, coupled with an increase in the percentage of mortgages being granted to first time buyers shows the market that it's a good time to buy. Consulting the right agent and selecting the property that falls within your means is a winning combination as it will stand you in good stead to weather the pending interest rate hikes.

A good conveyancer will ensure that your purchase and transfer are seamless and this is why we recommend that you contact one prior to putting pen to paper on your sale agreement.

Mc Naught and Company are available via a number of means of contact and the partners mobile numbers are on our website should you have any queries.

Happy house-hunting :-)

Alien and Invasive Plant regulations

Whilst most people believe the Jacaranda tree is indigenous to South Africa, it was in fact introduced to Pretoria in 1880 via import from Argentina.

Pretoria Jacaranda's

Well in order to determine precisely which plants in our properties are alien or invasive species, new regulations require that a purchaser is made aware of which plants on the property they are buying are listed as alien or invasive and made aware of the fact that certain plants need to re eradicated and others need to have a permit applied for.

We will keep you updated on contact details for inspection officers who can assist in these clearances and declarations, but in the meanwhile advise that all sale agreements be amended to include an example clause as follows:

"(a) In terms of the NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT 2004 (ACT NO. 10 OF 2004) ALIEN AND INVASIVE SPECIES REGULATIONS, 2014, The Seller declares that to the best of his knowledge there are no Invasive Alien Species, as per the National register of alien and listed invasive species, present on the property.

* (b) In terms of the NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT 2004 (ACT NO. 10 OF 2004) ALIEN AND INVASIVE SPECIES REGULATIONS, 2014, The Seller declares that the following listed alien invasive species are present on the property:

______________________________________________________________________

______________________________________________________________________

______________________________________________________________________

______________________________________________________________________

* (c) The Purchaser understands that he must apply for a permit with regards all Category 2 Alien Invasive Species in his own name in terms of the NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT 2004 (ACT NO. 10 OF 2004) ALIEN AND INVASIVE SPECIES REGULATIONS, 2014 once the property has been transferred.

(*Delete what is not applicable)

(d) The purchaser acknowledges that he has acquainted himself with the extent and nature of the property and accepts the property as such, including the vegetation on the property."

Once an inspection has been done by an expert, furnishing that to the purchaser will enable them to accurately determine which plants require application and which require removal.

Watch this space for updates in this field!!!

May newsletter published

Lease info important for later evictions

Evicting  defaulting tenants can be fraught with difficulty. 

It is important when taking on a new tenant to establish that in the event of them having to move, they have an alternative place to move to - get this is writing at the time the lease is signed as you have to prove this before you can get them evicted, as the courts won’t evict someone who may then be homeless.

Property sales to foreigners

We’re not hoping to sell real estate any time soon to Martians, but want to explain the process selling property to foreign citizens or companies, otherwise known as aliens.

Illegal Aliens

There are procedures and requirements that must be complied with in certain circumstances. For instance, sales to illegal aliens are prohibited ie the person or company must be legally established in South Africa. Foreign companies need to be locally registered to qualify and non-residents staying for longer periods may have to apply for a residence permit in terms of the Aliens Control Act.  Other than that you are good to sell to an Alien.. If you dare! If you or your buyer is a foreign company our offices are able to help in getting that company locally registered with our Registrar of Companies to qualify. Where shares in a company are owned by a non-resident, a South African officer for the company also needs to be appointed.

Mortgage Bonds

Cash is good, but if a mortgage bond is required to finance a foreign purchase, no more than 50% of the purchase price may be bonded. Money brought into the country to acquire property may also be taken out again provided at the time of repatriation the full records of the funds coming in need to be retained and supplied. Please check compliance requirements with our offices.

October newsletter published

Our October newsletter is out and it contains important information affecting property buyers and sellers. Click on the pic to enlarge it and read...

 

 

For the reasons set out in our newsletter, here is the suggested wording of a clause that should be inserted in sales agreements to afford property buyers with some form of protection against rates department claims arising after transfer. Of course it does not help if the seller has had his money and bolted, but this is the best one can do in the face of the Council's wide power to grab money from the property owner:

 

"The Seller hereby guarantees and indemnifies the buyer against any claim existing or that may arise in the future by the local authority in respect of any rates and taxes on the property. In the event of such a claim arising, the Seller undertakes to pay same forthwith on request or to re-imburse the Purchaser with any amounts paid in respect of such claim."

 

MPC Leaves Rates Unchanged

The SA Reserve Bank Monetary Policy Committee has left the lending rate unchanged at the meeting this afternoon. This is not the news that the property market was hoping for, but the stability in having the rate unchanged yet again means that buyer's can buy with certainty that the MPC is following a conservative approach.

 

Especially in these certain times - there has never been a better time to invest in property, and Mc Naught and Company are your experts in assisting you in the property picture.

Right of First Refusal

OPTION TO PURCHASE OR RIGHT OF FIRST REFUSAL?

 

 

For an Option to Purchase to be valid, the document needs to contain all of the terms and conditions for the possible sale so that if a buyer were to exercise the option, everything that has to be agreed is already in the document. The option should also set out a time period, if any, for which it will be valid and a procedure to the purchaser to exercise the option.

 

 

The difference between this and a right of first refusal is that if the buyer wanted to exercise his right to purchase, the terms and conditions and sale price would still have to be agreed, and if there is no agreement, there is no sale. An option is much stronger because it commits the seller to selling, whereas the right of refusal merely puts the buyer in the front row for negotiations to purchase.

 

 

The wording for a Right of First Refusal would be something like this:

 

 

The Seller and Owner of Erf 25 Pennington hereby grants to Joe Soap (the "grantee") the right of first refusal in the event of a proposed sale of the property.

 

 

To enable the grantee to exercise such right, the owner shall make the property available to the grantee to purchase on stipulated terms and conditions.

 

 

The grantee shall exercise the right on or within 3 days of being presented with an offer, and failing acceptance of the sale offer, the property may be sold to another purchaser, but not at a price or on terms more favourable than first offered, unless again first offered to the grantee on such more favourable terms.

Groundbreaking new LIVE CHAT launched

Mark and Dave are claiming a South African first - not a Gold Medal - but still something we can in a small way be proud of.                       

OUR LIVE CHAT is ONLINE

We have launched our free online LIVE CHAT facility. It is a first for a South African legal firm to offer instant legal help online - better service to our clients and associates and cuts the frustration of waiting for an email or making a phone call to your lawyer’s office.

How it works

At the bottom of each page on our website at http://www.maclaw.co.za there is an online chat logo. You can click on either partner Mark or Dave’s photo which will call up a chat box and simultaneously a chat window will pop up on their desktop. You are able to ask either of them any question and if they are showing online you will be able to get an instant answer. If they are in consultation or offline for any reason it will post your question as a message on their desktop. Never before has it been this easy to get instant access to your lawyer.. Without laying out a cent.

 

You can get chat on your Company website too

Even more revolutionary, you can now get a lawyer on your side too.. on your own website.

If you send us a request, we will give you the html software coding to place a similar attorney LIVE CHAT button on your website. This means that if your clients are looking at your website, browsing properties to buy or sell, or wanting to understand the legal process involved in purchasing a property, they could click on the LIVE CHAT logo and get instant advice from a qualified attorney.

Questions such as: the choice between registering in a close corporation or trust; the costs involved; how to get bond finance; can one cancel a lease; is transfer duty or capital gains tax payable; is a sale agreement enforceable; who is responsible for a collapsing retaining wall.. can now be answered and are just a click away.

What better way to offer your own clients fast, professional legal advice and complement the services your firm offers to the public.

THE WAY TO GO - Mc NAUGHT AND CO, your innovative property attorneys. FIRST and FAST!

Whilst online chat per say, is not revolutionary, and we have had Skype on each of our staff desktops for a few years, (and you may add us), it is a first to be able to offer those browsing our website instant access to advice, and for you to be able to put our advice line on your website too.

Frequently Asked Questions?

Property Law

 

How much will it cost me to transfer a property into my name?

 

The transfer costs depend on the value of the property. If you click on this link to our website, we have a handy calculator that will give you a good idea of the costs, including some "hidden" costs that other firms may not warn you about in advance, but which will be required to be paid, such as rates or levies, or Vat.

 

How do I go about getting a bank loan to finance my property purchase?

 

If you are buying through a Real Estate Agent, they will generally be able to assist you in getting bank finance. Here is a link to our guide on getting a mortgage loan, an affordability calculator and repayment calculator, and with links to the banks and mortgage originators we deal with who will also gladly help you. You can print out these calculations, email them or sms them to yourself or others, free of charge.

This posting is under construction and we will be building up a list of the questions we most frequently encounter, with our best stab at a response :-) For this purpose we have created a separate website for this collection of questions, adding to it from here onwards.

Mortgage Bond Applications

The difficult task of getting a bank loan (mortgage bond) to buy your property can be made easier if you follow this guide. There are 3 ways you can go about getting a loan:

WHO TO TALK TO?

1. Walk into the branch of the bank you deal with, or any branch of these 3 banks, and talk to a Home Loan Consultant;

2. Apply Online by clicking one or all of these links below to see which bank will give you a better deal and advice  -

                    Standard Bank     Nedbank      First National Bank

3.  Ask a Mortgage Originator for help - they usually deal with all of the banks and get paid a commission by the bank for finding bonds for them: it costs you nothing and they will help you get a loan. Here is a list of those we deal regularly with.

             CapCubed Finance                BetterBond                  BD Sure Bonds

WHAT DO I NEED?

Before applying for a bond, you need to get some information to hand if you don't want to waste time. Everyone will ask you for this information:

1.  A copy of the Sale Agreement - get one from the Agent selling you the property.

2.  Your identity document, and that of your partner if you are married or intending to buy jointly with your partner.

3.  Both of your proof of residential address - original municipal account, cellphone statement, or other finance statement or SARS Tax letter.

4. Your Salary payslips, or if self-employed, your audited financial statements and 6 months bank statements.

5. Your income tax registration numbers.

6. A list of your income and expenditure with account numbers of expenditure accounts eg vehicle finance account number, credit card account numbers.

7. If you are going to see a bank consultant or mortgage originator, phone first to see if there is anything else you will need.

HOW MUCH DOES IT COST AND CAN I AFFORD IT?

Our Mc Naught and Company website has a fairly comprehensive calculator to help you work out what size loan you can afford or will qualify for and how much the Attorney's charges are to register this loan in the Deeds Office when the property is transferred into your name. Click on the link here to our handy calculator and see for yourself.

Discount

Mc Naught and Company would like to secure the legal work involved in registering both the property transfer into your name as well as the mortgage bond registration for the bank and if we do both we will offer you a discount on the costs. Be SURE to specifically request that Mc Naught and Company be appointed as the Conveyancers for the property registration when you are dealing with the real estate agent and also when you are dealing with the Bank consultant or Mortgage originator, otherwise they will allocate the work to whom they or the seller prefers and you will not get this discount. It will also be convenient for you to only visit one set of lawyer's offices when you need to sign all the transfer and bank paperwork. Mc Naught and Company serve on the panel of Attorneys for bond registrations with Standard Bank, Nedbank and First National Bank and it will be our pleasure to help you.

Now Proudly FNB Panel Attorneys

Mc Naught and Company have just been appointed to the First National Bank panel of mortgage bond registration attorneys.

We are thrilled to now be able to offer our expertise, professionalism and service excellence to all FNB bond clients.

For more information contact our offices on 031 467 3810 (Bluff) or 031 903 7307 (Amanzimtoti) or mail info@maclaw.co.za

Prime Rate Decrease!

Reserve Bank govener - Gill Marcus

Good news for home owners and prospective home buyers alike is that the South African Reserve Bank unexpectedly cut its repo rate by 50 basis points to 5.0 percent today.

This cut means that the prime lending rate will drop to 8.5% making owning property the most reasonable it has been in over 30 years!

Whether it be your first home purchase or the purchase of additional investment property, Mc Naught and Company will expertely deal with your transfer process!

General Power?

It is common to use a General Power of Attorney or a Special Power of Attorney to sign documents - sale agreement and conveyancing documents if you want someone to step in for you if you are leaving for overseas, going on holiday etc.

However if you do intend to use this document to register a property transaction in the Deeds Office, the GPA or Special Power of Attorney needs to comply with certain criteria.

1. Grantor to be correctly described: the person giving the power of attorney needs to be correctly described, exactly as they would be on the Deed of Transfer for the property transaction concerned

eg

NAOMI TRUDY OLDFIELD
Identity Number 570823 0012 08 4
Married out of community of property  or

PETER GEORGE OLDFIELD
Identity Number 550324 5105 08 3
and
NAOMI TRUDY OLDFIELD
Identity Number 570823 0012 08 4
married in community of property to each other  or

PETER GEORGE OLDFIELD
Identity Number 550324 5105 08 3
Married, which marriage is governed by the laws of England and duly assisted herein as may need be by
NAOMI TRUDY OLDFIELD
Identity Number 570823 0012 08 4

These are just 3 examples and depending on how or where the parties are married, the citation of them on the document needs to be exact, failing which it will get rejected by the Deeds Office and will have to be redrawn, meaning a delay in the conveyancing process.

  2. The GPA either needs to get registered in the Deeds Office along with the related property transaction (and there is a cost involved), or, if used as a supporting document, it needs to carry a conveyancer's certificate that the GPA relates to the particular property transaction.

3. The GPA or Special Power of Attorney needs to carry a "Prepared by me" confirmation and signature by a Conveyancer.

4. If the power of attorney is signed outside of South Africa, the signature of the document needs to be properly authenticated for use in the Republic. There is also a set procedure for this and if you click on the following link, it will take you to an earlier blog article dealing with the authentication process.

Property 24

 Here's the new face of Mc Naught and Company on the property website Property24.com

We can receive electronic transfer instructions from any agents listed on the site.

Quick law bites...

Here's some interesting facts worth remembering:

Foggerty-Le Roux

1. If a woman assumes a double-barreled name on marriage, a formal change of name application with Home Affairs must be done. A deeds registration therefore cannot be done in this new name without this as the registration needs to follow the details appearing on the person's official green bar-coded ID book.

Partners in crime

2. Partners in a partnership business need to register property in all of the names of the partners and it cannot be in the partnership name.

Marry well

3. Marrying in community of property automatically gives ownership of previously acquired property of one party to them jointly.It is important when marrying to consider the full implications of the way you intend to get married. Check out our marriage page on our website and come in for a full discussion. There is no additional charge on top of the costs of registering an Antenuptial Contract to make sure you have peace of mind.

Yes Sir

4. A sale of agricultural land being sub-divided is not valid unless the consent of the Minister is obtained first. Sales containing a "subject to" clause before the consent of the Minister has been obtained have been ruled in court as invalid. If you are contemplating purchasing sub-divided land or land to be sub-divided, please come and see us to make sure it can be structured legally.

Get a slice of South Africa's sunshine..

5. Foreigners may buy property in South Africa but may not get a bond for more than 50% of the purchase price. The profits of any resale can be taken out, as long as the owner can prove the original source of the funds from outside South Africa. If you have a foreign buyer, one needs to check the buyer's intentions and make sure the right documents are preserved. Foreign companies as purchasers also have special requirements and you can check these with us.

For more info email dave@maclaw.co.za
Dave 083-70333-29
Acknowledgements to SA Deeds Journal Issue 25

New Sectional Titles management

The Sectional Titles Schemes Management Act, 2011, has recently been promulgated. This extracts from the Sectional Titles Act all of the provisions relating to Body Corporate management and the new Act now provides for this.

In order to provide for some conformity in the way Body Corporates are managed whether first registered under the previous 1971 Act, or the later 1986 Act or in future, provisions are set out to make uniform rules applicable to these schemes, making the scope for variations to Rules smaller. Any proposed amendment to Rules also now needs to be approved by an Ombudsman appointed in terms of the Act. This will ensure that no rules that contravene the Act will be able to be passed at a meeting of a Body Corporate.

Provision is also made for the appointment of an Sectional Titles Schemes Management Advisory Council to advise the Government on continuing problems facing the industry and the need for changes to legislation affecting the sectional title property industry.

A copy of the Act can be downloaded free off our Skydrive. Follow the link.