Author Archive

THE CONVEYANCING PROCESS STEP BY STEP

The conveyancing process may seem very daunting and complicated for a first-time homebuyer. I will try to simplify the process below for you in order for you to understand exactly what is happening at each step of the transfer process.

STEP 1 – RECEIVE THE SALE AGREEMENT

The seller and purchaser sign the sale agreement which contains all the conditions of the sale of the erf or sectional title property, which the estate agent (if there is an estate agent involved) or the private seller will sent to the transferring attorney which is usually appointed by the seller.

STEP 2 – COLLECTING INFORMATION

The transferring attorney will send out formal acknowledgement of the sale agreement to all the parties involved and then request all the necessary FICA documentation of the seller and the purchaser; the payment of the deposit as contained in the sale agreement or state the date by which
the purchaser must provide proof that a bond has been granted to him as contained in the sale agreement; the title deed or in the case where there is currently a bond over the property the bond account number in order to request bond cancellation figures from the current bondholder which is
required to cancel the current bond; and rates clearance figures from the particular municipality in which area the particular property is situated in order to obtain an rates clearance certificate and levy clearance figures from the managing agent in case of sectional title property in order to obtain an levy clearance certificate.

STEP 3 – FINANCIAL ARRANGEMENTS

The purchaser must pay the deposit into the transferring attorneys trust account which will be invested on behalf of the purchaser and the interest on the account will be for his account. If the sale agreement is subject to the purchaser obtaining a bond the purchaser must provide the transferring
attorney with proof that a bond has been granted to him by an acceptable banking institution in South Africa and the amount for which the bond has been approved for. The bond registration attorneys will attend to the registration of the bond on behalf of the bondholder and will supply the transferring attorneys with the amounts available for guarantees and request guarantee requirements to cancel the existing bond over the property. The bond cancellation attorneys are appointed by the existing
bondholder to cancel the bond. The bond cancellation attorneys will send a copy of the title deed as received from the bondholder and the bond cancellation figures together with their bond cancellation costs to the transferring attorneys. The transferring attorneys will send the bond cancellation figures to the bond attorneys in order to issue the necessary guarantees to the cancel the existing bond over the property.

STEP 4 – DRAFTING OF THE DOCUMENTS

The transfer documents and bond documents are drafted and appointments are made with the Seller and/or the Purchaser respectively to the sign the necessary documents and pro forma statement of account for the transfer fees and bond registration fees are given to the purchaser which must be
paid as soon as possible.

STEP 5 – GETTING ALL THE SUPPORTING DOCUMENTS READY FOR LODGEMENT

As soon as the pro forma transfer costs is paid by the purchaser and all the transfer documents has been signed by the seller and the purchaser, the transferring attorneys will pay the rates clearance and levy clearance figures and apply for the transfer duty receipt from the South African Revenue Service. All compliance certificates must be supplied by the agent or seller to the transferring attorneys and the purchaser must pay the remaining balance of the purchase price, if it is not covered by the guarantees of the bond registration attorneys.

STEP 6 – GUARANTEES

The bond registration attorneys will provide the transferring attorneys with the original guarantees which will cover the purchaser price and the transferring attorneys will send it to the bond cancellation attorneys to cover the bond cancellation figures and will either pay the bond cancellation costs or provide them with an undertaking to pay their bond cancellation costs on date of registration. It is important that at this stage all the conditions of sale have been complied with.

STEP 7 – LODGEMENT

When the transferring attorneys, bond cancellation attorneys and the bond registration attorneys are ready to proceed with the transaction they will arrange with each other for simultaneous lodgement of all the deeds at the Deeds Office in which area the property is situated. The transfer, bond
cancellation and bond registration deeds are then lodged simultaneously in the Deeds Office.

STEP 8 – DEEDS OFFICE PROCEDURE

On the day when the deeds are lodged personal printouts of the seller and purchaser and the property are made and the Deeds Office checks whether there are any interdicts against the property. The deeds are then sorted for distribution to the various examiners in the Deeds Office.

The deeds are first examined on Level 1 by a junior examiner, thereafter it is examined on Level 2 by senior examiner and then examined on Level 3 by a monitor. This process takes about 7 to 8 working days, provided there are no unnecessary delays.

STEP 9 – PREPARATION

The deeds are then either passed and placed on preparation which means the day before registration and then all the attorneys must confirm whether they are ready to proceed with registration or the deeds gets rejected which means that the deeds are delivered back to all the attorneys, because the Deeds Office is not satisfied with the deeds and must it thus be corrected
and relodged and then the deeds must go through the whole examiner process from the beginning again.

STEP 10 – REGISTRATION

The day of the registration all the attorneys which are conveyancers must appear at the Deeds Office to registrar all the deeds and the purchaser becomes the new owner of the property and the seller’s existing bond is cancelled with the simultaneous registration of the purchaser’s bond. The bank must then pay according to the guarantees that was issued by the bond registration attorneys and investment account must be closed.

STEP 11 – PAYOUT OF PROCEEDS

The transferring attorney will then draw the finale statements of account for both the seller and the purchaser and the purchase price after deducting the bond cancellation figure received from the bond cancellation attorneys; bond cancellation costs of the bond cancellation attorneys; estate agent’s commission if applicable; costs of the compliance certificates; and the pro rata share of the rates clearance figures and levy clearance figures in case of sectional title property etc. must be paid to the seller and any credit balances to the purchaser which include the interest earned on the invested deposit minus the transfer cost; transfer duty payable, the rates clearance certificate fee and levy clearance certificate fee and the pro rata share of the rates and taxes and levy clearance figures in case of sectional title property will be paid out to purchaser. The new owner will usually then take occupation of their new property.

STEP 12 – DELIVERY OF THE TITLE DEED FROM THE DEEDS OFFICE

The Deeds Office will deliver the original title deeds and bond documents to the transferring attorneys and bond registration attorneys after a period of approximately 3 months, depending on whether there were any delays with data captured of the deeds by the Deeds Office.

STEP 13 – DELIVERY OF THE TITLE DEED TO THE CLIENT AND BANK

The original title deeds are then delivered to the purchaser or in the case where there was a bond registered over the property the title deeds together with the bond deeds must be delivered to the bondholder for safekeeping.

Please note that this is the step by step conveyancing process for a normal transfer and not a deceased transfer or a divorce transfer etc. which may include more steps and may take longer to register.

RIGHTS AND RESPONSIBILITIES OF LANDLORDS AND TENANTS

A Landlord/Tenant relationship can be one of trust, cooperation and even a
contribution to the increase of the concerned property’s value or it can be one of sleepless nights, expensive litigation to evict a Tenant and suffering damages to your property.

LANDLORDS

Must I sign a lease with my Tenant?

A verbal agreement is as binding as a written lease, but if your Tenant insists on having something in writing, you must comply. It is, however, better for both of you to have your agreement in writing to set out the terms and conditions agreed upon. This will go a long way to preventing later disputes, when it is your word against your Tenant.

Should I ask for a deposit?

Yes, it is always a good idea to ask for payment of a deposit in the lease. Remember that the deposit must be placed in an interest-bearing account for the duration of the lease and given back to your tenant, plus interest it has earned, when the Tenant moves out.

If, however, your Tenant still owes you money on moving out, or if the property has been damaged beyond normal wear and tear, you can use the deposit to pay for repairs or to cover the money owed to you.

What maintenance must the Tenant do?

It depends on what your lease says. Usually, a Landlord maintains the outside of the property and the Tenant the inside thereof.

Can I increase the rent in the middle of a lease period?

Not unless your lease agreement specifically says that you are allowed to. If you want, you can add a clause to the initial agreement listing specific reasons that would allow you to increase the rent (for example, if the rates increase).

What can I do if my Tenant has not paid the rent on time?

Technically, your Tenant is in breach of contract. Refer to the breach clause of your contract and act upon it.

If you don’t have a cancellation clause in your agreement, it is good practice to write a letter giving your tenant seven days to rectify the breach, failing which you will have the right to cancel the lease.

How do I evict my Tenant if needs be?

You can never evict a Tenant yourself. You can only seek a court order to evict your Tenant if your Tenant is in breach of contract. To find out if your Tenant is in breach on contract, check your agreement. There should be a clause saying what constitutes a breach of contract (for example, not paying the rent on time) and what your rights would be in such a case (in other words, cancel the lease without further notice).

If your Tenant is indeed in breach of contract, take steps to strongly urge your Tenant to rectify the breach. If this does not work, seek the help of a competent Attorney.

What can I do if the Tenant has damaged the property?

If you asked for a deposit, you can use the money to repair damages attributed to the Tenant beyond normal wear and tear when the Tenant moves out. Be sure to follow these following steps:

  1. When your Tenant moves in, inspect the property together and list, in writing, any existing defects – both should sign this and it must be attached to the lease agreement;
  2. When your Tenant moves out, inspect the property together again, ideally no earlier that three days before the Tenant moves out. Compare the new list of defects with the list you made earlier;
  3. You may give the Tenant an opportunity to do the repairs personally, or you can agree that you will do it. Hold on to receipts for repairs paid for out of the deposit. Your former Tenant has a right to see them;
  4. If the repairs cost less that the deposit plus the interest accrued, you will have to reimburse your former Tenant with the difference.

TENANTS

Must I sign a lease with my Landlord?

(See Landlords)
If you have rented a property on a verbal basis for some time and your Landlord then asks you to sign a lease, you do not have to sign a lease with terms that are different to your verbal agreement. Rather, the Landlord will have to negotiate new terms with you and secure your agreement first. It is, however, not advisable to have a verbal agreement and as such we strongly recommend that your lease agreement be put into
writing.

What information must be on a written lease?

1. Your name as well as your Landlord’s;
2. Your Postal address as well as your Landlord’s;
3. The address of the property being leased;
4. The amount for which you will rent it;
5. The amount by which the rent will increase (for example, by 10% when
renewing the lease);
6. When the rent will increase (for example, if there is a rates increase);
7. How often the rent is payable (for example, monthly);
8. The amount of the deposit, if any;
9. You and your Landlords obligations;
10. The conditions under which either you or your Landlord can give notice to cancel the contract (for example, if specific maintenance is not done, or if the Tenant is in arrears with the rent)

Must I pay a deposit?

Yes, if the Landlord asks for one and it is stipulated in the lease. If the terms of your original agreement, whether oral or written, did not include a deposit, you need not pay one if the Landlord asks you to do so later. Changes to an agreement are only valid if both you and your Landlord agree to it.

Can my Landlord enter the property without my permission?

Your Landlord has a right to enter the property to perform routine inspections, but only after arranging a specific time. You do not have the right to deny him reasonable access.

Can my Landlord increase my rent when he wants to?

No. The lease or verbal agreement determines when, and by how much, your rent can be increased. It the agreement does not specify an amount or date for an increase, the Landlord has to negotiate the increase with you. Neither you nor your Landlord

FICA & FATC

THE IMPLICATION AND REQUIREMENTS REGARDING FICA AND FATCA
FICA

What is FICA?

The Financial Intelligence Centre Act, 38 of 2001 (FICA), came into effect on 1 July 2003. FICA was introduced to fight financial crime, such as money laundering , tax evasion, and terrorist financing activities. FICA brings South Africa in line with similar legislation in other countries designed to reveal the movement of moneys derived from unlawful activities, and thereby curbing money laundering and other criminal activities.
FICA aims to ensure that financial institutions know with whom they are doing business. In terms of FICA, financial institutions are required to preserve the paper trails of all transactions and are obliged to report any possible money laundering to the investigation authorities.

What documents do I need to submit for FICA purposes?

Firstly, note that the required documents differ for individuals, minors, non-RSA residents, estates late, Trusts, Companies, Close Corporations, Partnerships and Unincorporated entities, for example, churches and clubs.
For you to enjoy the protection that comes with FICA, it is important to ensure that you are FICA compliant. This simply means that you need to take the following documents to your nearest bank branch.

In general, you will need the following documents to ensure FICA compliancy:

  1. A copy of your ID document, if you are a RSA resident, or a copy of your Passport if you are a non-RSA-resident;
  2. Proof of Residential Address, less than three months old, for example, your utility bill of Municipal account.

Should you not have proof of Residential Address in your name, you may
provide a declaration by a third party confirming that you share a residential address with them, and provide the third party’s proof of ID and proof of residential address, less than three months old;

3. Copy of your SARS document confirming your Income Tax number; and
4. A copy of your bank document confirming your individual banking details, less than three months old.
What are the consequences of not being FICA comoliant?

For Individuals:

When you do not comply with FICA regulations, you stand the risk of exposing yourself to criminals who could potentially use your account to commit fraud. Should any criminal activity take place on your account, you could be locked out of your own account, meaning you would have no access to your money. To resolve this, you need to take any relevant outstanding documents to your nearest bank branch.

I have submitted my FICA documents before. why does my Financial Institute require me to do this again?

Because FICA, its regulations and its guidance notes are continuously under review, requirements change from time to time. Financial Institutions are obligated to comply with legislation, regulations and any changes thereof and thus may require additional documentation from you in order to maintain your FICA compliancy.

I have several accounts with my Financial Institution, do I need to go through this process for every account?

No. you only need to go through this process once for all your personal accounts.

Business accounts are treated separately, though. You would need to submit
documentation for the business account separately from your personal account, and the specific requirements will depend on how your entity has been registered.

If you want to find out whether you are FICA compliant, you need to visit your nearest bank branch.

FATCA

What is FATCA?

FATCA is the acronym for the Foreign Account Tax Compliance Act (FATCA), which is an American law passed in March 2010. FATCA requires reporting of specified United States (US) persons or entities controlled by specified US persons by certain foreign Financial Institutions and possible withholding of Tax on US source income.

Its main aim is to identify US persons who may be using offshore accounts to avoid US taxation on their income and assets.

The South African Government has signed an Intergovernmental Agreement (IGA) with the Internal Revenue Service (IRS) agreeing to exchange information provided by Financial Institutions in South Africa. These Financial Institutions include South African Banks, Brokers, Asset Managers, Private Equity Funds, Long-term Insurers and other participants in the financial system.

Who will be impacted by FATCA?

FATCA will impact individual clients in affected products who may be identified as a specified US person for US Tax purposes. The legislation will also impact certain types of businesses, trusts or legal entities that are incorporated in the US or have spesified US owners who are regarded as controlling persons.

South African Financial Institutions under the IGA:

A South Africa Financial Institution will be a Financial Institution under the IGA if it falls within any one or more of the following categories:

  1. Depository institutions, for example, Banks;
  2. Custodial institutions, for example, Mutual funds;
  3. Investment entities, for example, Private Equity Funds;
  4. Certain types of Insurance companies that have cash value products or annuities.

What information will be reported to the Revenue Authorities?
In terms of the IGA, signed between the IRS and the South African Gorvernment, the following information are required to be reported on with respect to all US accounts:

  1. The name and address of each of the account holders;
  2. A Tax Identification Number (TIN) for each account holder that is a US person;
  3. An account number;
  4. The name and identifying number of the reporting financial institution;
  5. An account balance or value from 2015;
  6. Income flows and account balance from 2016;
  7. Gross proceeds on disposal, income flows and account balance from 2017;
  8. All payments made to non-participating financial institutions, and
  9. Payments made to accounts which are undocumented

For more information you can visit the SARS website at
www.sa rs.gov .za/Med ia/Med i aReleases/Pages/26-Ma rch-2015—U pdate-oni
m plementation-of-F A TCA-in-South-A frica.as px

In conclusion:

Always ensure that your Bank and/or Financial Institution are in possession of your updated contact details and information. FICA does not only help curb illegal activities, but also helps to keep the money of South African citizens safe.

If you have any further questions in this regard, please feel free to contact our offices.

Our offices are located at:
22 Scheide Street
Jeffreys Bay, 6330

Contact us at (042)293-3333 or reception@attornevs.law.za

Authentication of documents

Authentication of the signature on a document is required where a document is signed in one country and the documents must then be used in another country.

A clear distinction must be made between the following:

  • The authentications of documents executed in South Africa for use outside South Africa; and
  • 2 The authentications of documents executed outside South Africa for use in South Africa.

AUTHENTICATIONS OF DOCUMENTS FOR USE OUTSIDE OF THE REPUBLIC OF SOUTH AFRICA

It is important here to distinguish between two procedures namely:

  • Long procedure
  • Short procedure in terms of the CONVENTION FOR THE ABOLITION OF THE REQUIREMENT OF LEGISLATION FOR FOREIGN PUBLIC DOCUMENTS

1. LONG PROCEDURE

WHAT IS THE PROCEDURE THAT NEEDS TO BE FOLLOWED?

  • The person who signs the document must sign the document or must acknowledge his signature in the presence of the Notary whereupon the Notary must authenticate the signature of such person. The notary must sign the certificate of authentication and affix his seal of office to it.
  • The notary’s signature must, In turn, be authenticated by a Magistrate or the Registrar ot the High Court in the area where he practices.
  • The signature of the Magistrate or Registrar must, in turn, be authenticated by Director-General of the Department of Justice whose signature must, in turn, be authenticated by the Director-General
    of the Foreign Affairs
  • Although not a formal requirement, many non-convention countries will require that their local Embassy approve and confirm the documents as having been signed in the Republic of SA

EXAMPLE OF CERTIFICATE OF AUTHENTICATION

CERTIFICATE OF AUTHENTICATION

Know all whom it may concern, Notary, practicing at in the Province of Republic of South Africa and duly sworn and admitted as such do hereby certify that I was present on and saw who identified himself to my satisfaction by the production of identity document number issued to him by the relevant Government authority of the Republic of South Africa, the person referred to in the document attached hereto, sign and execute the
document annexed hereto, marked A being General Power of Attorney granted by him in favour of and the name signed hereon is in the actual handwriting of and that the names and are the respective signatures of and who signed as witnesses In witness whereof, I, the said Notary, have signed this deed and have caused my seal of office to be affixed hereto at on the day of 2020.

QUOD ATTESTOR
NOTARY

THE NECESSARY CERTIFICATE AUTHENTICATING THE NOTARY’S
SIGNATURE IS AS FOLLOWS:

TO ALL WHOM IT MAY CONCERN

I, (Insert name & office held) do hereby certify that XY, whose signature is affixed to the certificate on the other side hereof, is a notary public, by lawful authority duly admitted and sworn, residing and practicing at in the province of and that to all acts, instruments, documents and writings, subscribed by him in that capacity, full faith and credence are given in court and thereout.

Given under my hand and seal of office at
REGISTRAR

SHORT PROCEDURE IN TERMS OF THE CONVENTION FOR THE ABOLITION OF THE REQUIREMENT OF LEGISLATION FOR FOREIGN PUBLIC DOCUMENTS

WHEN IS IT APPLICABLE?

  • The Convention may be used if the country where the public document is signed as well as the country where the documents is to be used are both Convention countries.
  • When the Rule 63 procedure is more simplified than the Convention procedure, the latter may not be insisted upon.
  • This Convention is only applicable to public documents which is defined as:

o Documents originating from a government or official associated with the courts or tribunal of
the State including those originating from a public prosecutor, clerk of the court or sheriff;
o Administrative documents;
o Notarial deeds; and

Official certificate attached to documents which were signed by person in their private
capacities, such as official certificate to confirm the registration of a document or the fact that
it existed on a certain date and official and notarial authentication of signatures.
• The Convention is not applicable to:
o Documents executed by diplomatic or consular agents; and
o Administrative documents dealing directly with commercial or customs activities.
WHICH COUNTRIES DOES IT APPLY TO?
Since the Convention may still afford membership to states, and membership may be terminated, the
inclusion of a list of member states is not very practicable. However, an updated list of member states
may be obtained from the official website of The Hague Convention at
httos://www.hcch.net/en/instruments/conventions/status-table/?cid=41 or
httos://en.wikioedia.ora/wiki/Haaue Conventions of 1899 and 1907.
WHAT IS THE PROCEDURE THAT NEEDS TO BE FOLLOWED?
• The document must be signed by the signatories; and
• Authentication of the document by means of an Apostille appearing on, or attached to, the
document, which Apostille:
o must comply with the model annexed to the Convention, but
o may be drawn up in the official language of the authority which issues it; and
o must bear the title “Apostille (convention de Le Hayed u 5 octobre 1961)” in the French
language; and
o be in the form of a square with sides at least 9cm long; and
o be issued and signed by, and bearing the seal of office of, any of the following:
■ any South African diplomatic or consular agent in the foreign country concerned;
or
■ any magistrate or additional magistrate; or
■ any registrar or assistant registrar of the High Court of South Africa; or
■ any person designated by the Director-General: Justice.
• No witnesses have to sign the document.
• Even if the document is a notarial deed or the signatories of the document have been identified
and the document “authenticated” by a notary public, further authentication is required.

EXAMPLE OF THE APOSTILLE IN TERMS OF THE CONVENTION

AUTHENTICATIONS OF FOREIGN DOCUMENTS FOR USE WITHIN THE REPUBLIC OF SOUTH
AFRICA
It is important to distinction between three procedures namely:
1. Rule 63(2)(e) procedure which only apply to specified countries
2. Convention procedure which only apply to some countries
3. Rule 63 procedure which apply to all foreign countries

RULE 63(2)(E) PROCEDURE

WHICH COUNTRIES DOES IT APPLY TO?

  • Botswana;
  • The United Kingdom of Great Britain and Northern Ireland (England or Ireland);
  • Lesotho;
  • Swaziland; and
  • Zimbabwe.

WHAT IS THE PROCEDURE THAT NEEDS TO BE FOLLOWED?

• The Signatories must sign the document; and
• Notary public practicing as such in that country must:
o Identify the signatories; and
o Sign the document; and
o Affix his/her seal of office to the document
o No witnesses must sign the document
o The notary public need not to identify the signatories on a certificate separate of the document
it is acceptable for the notary to identify the signatories by affixing such a clause below their
signatures followed by his/her signature and seal of office.

2. AUTHENTICATION IN TERMS OF THE CONVENTION FOR THE ABOLITION OF THE REQUIREMENT OF LEGISLATION FOR FOREIGN PUBLIC DOCUMENTS WHEN IS IT APPLICABLE?

  • The Convention may be used if the country where the public document is signed as well as the country where the documents is.to be used are both Convention countries.
  • When the Rule 63 procedure is more simplified than the Convention procedure, the latter may not be insisted upon.
  • This Convention is only applicable to public documents which is defined as:

o Documents originating from a government or official associated with the courts or tribunal of
the State including those originating from a public prosecutor, clerk of the court or sheriff;
o Administrative documents;
o Notarial deeds; and
o Official certificate attached to documents which were signed by person in their private capacities, such as official certificate to confirm the registration of a document or the fact that it existed on a certain date and official and notarial authentication of signatures.

• The Convention is not applicable to:
o Documents executed by diplomatic or consular agents; and
o Administrative documents dealing directly with commercial or customs activities.

WHICH COUNTRIES DOES IT APPLY TO?

Since the Convention may still afford membership to states, and membership may be terminated, the inclusion of a list of member states is very impracticable. However, an updated list of member states
may be obtained from the official website of The Hague Convention at
httos://www.hcch.net/en/instruments/conventions/status-table/?cid=41 or
httos://en wikipedia.ora/wiki/Haoue Conventions of 1899 and 1907.

WHAT IS THE PROCEDURE THAT NEEDS TO BE FOLLOWED?

• The document must be signed by the signatories; and
• Authentication of the document by means of an Apostille appearing on, or attached to, the document, which Apostille:
o must comply with the model annexed to the Convention, but
o may be drawn up in the official language of the authority which issues it; and
o must bear the title “Apostille (convention de Le Hayed u 5 octobre 1961)” in the French
language; and
o be in the form of a square with sides at least 9cm long; and
o be issued and signed by, and bearing the seal of office of, any of the following:
■ any South African diplomatic or consular agent in the foreign country concerned;
or
■ any magistrate or additional magistrate; or
■ any registrar or assistant registrar of the High Court of South Africa; or
■ any person designated by the Director-General: Justice.
• No witnesses must sign the document.
• Even if the document is a notarial deed or the signatories of the document have been identified
and the document “authenticated” by a notary public, further authentication is required.

EXAMPLE OF THE APOSTILLE IN TERMS OF THE CONVENTION

3. RULE 63 PROCEDURE WHEN IS IT APPLICABLE?

• A document referred to in Rule 63 means any deed, contract, power of attorney, affidavit or other writing, but does not include an affidavit or solemn or attested declaration purporting to have been made before an officer prescribed by section 8 of the Justices of Peace and Commissioners of Oaths Act 16 of 1963.

WHICH COUNTRIES DOES IT APPLY TO?

This procedure may be followed in respect of documents signed in any country other than South Africa.

WHAT IS THE PROCEDURE THAT NEEDS TO BE FOLLOWED?

  • The document must be signed by the signatories; and
  • Authentication of the document by means of a certificate attached to the document, which certificate must be issued and signed by; and bearing the seal of office of, any of the following:

o The head of the South African diplomatic or consular mission; or
o a person in the administrative or professional division of the public service serving
as a South African diplomatic, consular or trade office abroad; or
o any Government authority of such country charged with the authentication of
documents under the law of such country; or
o the consul-general; consul; vice-consul or consular agent of the United Kingdom.
• No witnesses have to sign the document.
• Even if the document is a notarial deed or the signatories of the document have been identified
and the document “authenticated” by a notary public, further authentication is required.

EXAMPLE OF THE CERTIFICATE OF AUTHENTICATION IN TERMS OF RULE 63

 

Buying a sectional title property

When purchasing a property, one assumes you own the structure and the surrounding erf within the walls that form the boundary. Make sure your property is full title or Sectional Title. To assure you ownership of a Sectional Title is secured by a title deed exactly the same as a normal house
described in a title deed, but the following is useful information and facts in regard to Sectional Title Units.

QUESTIONS THAT SHOULD BE ASKED BEFORE YOU BUY INTO A SECTIONAL TITLE SCHEME

When you become an owner in a sectional title scheme you automatically become a member of the body corporate, which consists of all the owners of the units in the sectional title scheme and the trustees appointed by the body corporate are responsible for the day-to-day management of the
sectional title scheme. This can ultimately affect what you can do with your property, how you can use and enjoy your property, and the demands that can be made on your finances.

In a perfect world, you would only buy in a sectional title scheme that was well run, financially sound, and had no major structural defects or maintenance problems and you would only buy the property once you had full knowledge of what you were letting yourself in for. Here are just some questions to ask before you buy into a sectional title scheme.

1. WHAT IS THE RULES OF THE SECTIONAL TITLE SCHEME?

The Sectional Titles Act defines the rights and responsibilities of the various parties who manages and lives in a sectional title scheme. These rights and responsibilities are also defined in the Prescribed Management Rules and the Prescribed Conduct Rules, which were issued under the Sectional Titles Act. The Prescribed Management Rules defines the rights and responsibilities of owners and the powers and functions of trustees, while the Prescribed Conduct Rules establish the norms and standards to govern how the residents will live together on the property.

Many body corporate’s do not make any amendments· to the Prescribed Management Rules, but most schemes have substantially added to or changed the Prescribed Conduct Rules. It is therefore important that you obtain a copy of the management and conduct rules before you buy into a
sectional title scheme, because these rules define the constraints that you will have to live with as an owner of sectional title unit.

2. WHAT AM I REALLY BUYING ON THE SECTIONAL TITLE PLAN?

When buying into sectional title, you will be the owner of a unit, which consists of a section and its undivided share in the common property.
A “section” is demarcated as such on a sectional plan and each section is defined by an imaginary line, called the median line, which runs through the middle of the walls, doors, windows, floor and ceiling that form the physical boundaries of that section. Sections are demarcated by solid lines. If the section includes an unenclosed area, such as a balcony or veranda, the division between the enclosed section and the open area will be demarcated with dashed lines. The only way to know for certain where a section starts, and ends is by inspecting the sectional title scheme plan. The sectional plan will also show if there are any registered exclusive use areas on the common property.

Accordingly, it is important to obtain a copy of the sectional title scheme plan before you buy into a sectional title scheme.

An “undivided share” means that no owner can claim ownership of a certain part of the common property. Your undivided share of the common property is determined by the size of the section that you own. This share, which is known as your participation quota, is calculated by dividing the floor area of the section (rounded off to the nearest square meters) by the total floor area of all the sections. The result will be expressed as a decimal fraction correct to four places. Your participation quota is important because it determines the following:

  • The value of your vote at the general annual meetings of the body corporate;
  • Your liability for levies (including special levies); and
  • Your liability for body corporate debts.

3. DO I HAVE ANY RIGHTS TO EXCLUSIVE USE AREAS IN THE SECTIONAL TITLE SCHEME?

Exclusive use areas remain part of the common property, which means that the body corporate has the final say on what can and cannot be done on and with these areas. These exclusive use rights give an owner or a group of owners the right to use a part of the common property to the exclusion
of other sectional title scheme owners and residents and they entitle the body corporate to recover from the holder of the exclusive use area the costs associated with the upkeep of the area.

The first important thing you need to establish is what type of exclusive use right you will own.

1. A section 27 right is a registered right to an area of the common property that has been surveyed and is shown on the sectional plan. These registered exclusive use rights can be bonded, leased or made subject to servitude rights and can be enforced against another person by instituting legal proceedings. These rights are transferred or ceded by a notarial
deed and is usually created by the developer of the scheme.

2. A section 27 A exclusive use right is created in terms of the scheme’s rules, either the Prescribed Management Rules or the Conduct Rules. Exclusive use rights created by Prescribed Management Rules are more secure than those created by Conduct Rules. The rights created by the rules are not real rights in immovable property and will not appear on the sectional title scheme plan, although it should be shown on a scale plan that is included with the rules that created the exclusive use area. The rights are automatically transferred when the owner of the unit on which the right has been conferred sells his unit.

The second important thing you need to check is your monthly contribution to the exclusive use area.

You will be required to pay a contribution to the body corporate to offset the expenses associated with maintaining the exclusive use area, which include the provision of utilities and the cost of insurance. Exclusive use contributions collected from owners should only be used to repair and
maintain their exclusive use areas, but in many cases are treated like normal levies and end up paying for expenses associated with all the common property.

It is important to find out how the body corporate determines the contribution to an exclusive use area, whether all holders of exclusive use rights pay the same amount, even if their Exclusive use areas include substantially different amenities, and whether or not the contribution covers every expense associated with that exclusive use area.

Responsibility and liability for exclusive use areas is often dealt with in the rules, particularly if the exclusive use rights were created by the rules. The rules may make an owner directly responsible and liable for his or her exclusive use area or an owner may be responsible for maintaining the area while still paying a contribution to the body corporate. It is therefore important to check the rules to see what it says about the exclusive use areas of a sectional title scheme.

4. WHAT AM I REALLY PAYING FOR WHEN I BUY INOA SECTIONAL TITLE SCHEME?

A sectional title unit owner must pay a monthly levy to the body corporate to cover the expenses relating to the common property. The levy amount is based on an estimate of the incomes and expenses for the financial year which is adopted by the body corporate at the annual general meeting. Accordingly, it is important to find out exactly what the monthly levy is of the sectional title unit that you want to buy.

The body corporate is responsible for all expenses associated with the common property, except for those areas of the common property where owners have been granted exclusive use rights.

The fact that you never use a facility in the sectional title scheme is irrelevant; if it’s on the common property, you along with all the other owners are liable for its maintenance and repair, in proportion
to your participation quota.

If you are serious about buying into a sectional title scheme you should ask to be shown around the entire property and take the opportunity to take note of the facilities and the overall condition of the common property of the sectional title scheme. If you have already obtained a copy of the sectional plan, you will be able to ask informed questions about the ownership status of garages, storerooms and “private” gardens.
One way to find out if a scheme has persistent maintenance and repair problems is to obtain a copy of the trustees’ annual report. This report is one of the documents that must be sent to all members of the body corporate before the annual general meeting The law does not specify the level of disclosure required in these reports, but it is highly likely that they will reveal if a scheme has ongoing major repair problems, or if it is likely that a significant amount of money will have to be spent on maintenance in the near future. A lot can change in a sectional title scheme during a year, so you should also ask for copies of the minutes of at least the two most recent trustees’ meetings.

If you can’t see pre-paid meters, do not simply assume that the property will have meters to measure the electricity or water consumed in each section. In the absence of meters, a formula set out in the rules, your share of the costs of utilities will be determined by your participation quota, not your
consumption. It is thus important to find out beforehand how the account for electricity or water is calculated in the sectional title scheme you want to buy into.

5. WHAT WILL I BE PAYING ADDITIONAL TO THE LEVY ON SPECIAL LEVIES?

When a unit changes hands, the new owner becomes liable for a pro-rata payment of the ordinary levy from the date on which the unit is transferred.

In the case of an outstanding special levy liability it depends on who the registered owner was on the date the trustees passed the resolution to impose the special levy. If the seller was the registered owner, he is liable to settle the entire special levy, even though it might have been payable in instalments over a number of months. The seller and the buyer could agree that the buyer will take over the remaining special levy instalments, but the body corporate will have to be party to this agreement. If the buyer is the registered owner on the date on which the resolution is passed, he is
liable for the special levy.

A body corporate’s income from levies is supposed to be enough, not just for its operating expenses during the financial year, but also to enable it to build up a reserve fund for contingencies. The reality is that not many body corporate’s set aside funds that will be adequate for major future expenses; in fact, the monthly levy may cover only the predictable day-to-day operating expenses.

Special levies are supposed to be imposed only for unforeseen expenses that require immediate attention, but many trustees raise a special levy to pay for all major repairs and maintenance, because the ordinary levies are kept artificially low and budgets do not provide for a reserve fund.
In addition to the trustees’ report and the minutes of the latest trustees’ meetings, the body corporate’s most recent annual financial statements will enlighten you about your likely future liability.

If the scheme consists of 10 or more units, the financial statements must be prepared by an auditor.

The budget for the current financial year will probably be included with the financial statements. The financial statements and the budget will disclose what provision the body corporate has made and is making for future expenses.

The annual financial statements will tell among other things, the following:

  • Did the body corporate collect all its income from levies, special levies and any areas of the common property that it rented out? An under-recovery of levy income is a warning sign that
    the scheme may have a problem with arrear levies for certain owners
  • Has the body corporate taken out any loans? This may be a sign that, because of poor budgeting or unrealistically low levies over many years, the body corporate has had to borrow money to pay for essential expenses.
  • Does the body corporate owe money to its creditors, such as service providers and the municipality?

6. WHAT ALTERATIONS CAN I MAKE TO MY SECTIONAL TITLE SECTION?

You can extensively remodel the interior of your section without seeking the approval of the body corporate, but it is a violation of Prescribed Management Rules to carry out any alterations that will impair the structural integrity of the building.

If you want to enclose the patio or veranda, the level of consent will depend on whether the area forms part of your section or the common property (which includes exclusive use areas). You are not allowed to make improvements to, or erect a permanent structure on, an exclusive use area
without the approval of the trustees. Even if it does form part of your section, you will have to obtain the permission of the trustees, because according to the Prescribed Management Rules owners may
not do anything to their sections that is likely to prejudice the harmonious appearance of the building.

If the trustees grant permission, they will set the conditions for what the enclosure may look like. The “harmonious appearance” rule also means you cannot change the style or colour of exterior doors or windows without the trustees’ permission. You may not make even minor changes or affix anything to the common property without the consent of the trustees. This will affect whether you are able to install an awning, satellite dish or air-conditioning unit.

If the area forms part of the common property, enclosing it will amount to increasing the floor area of your section. The body corporate has to a take a special resolution to allow a section to be extended.

You will also have to submit a sectional plan of extension to the surveyor-general for approval. The participation quota of the scheme will have to be adjusted to take into account the extension. If the extension will result in the floor area of the section being increased by more than 10 percent, all
bondholders of sections will have to grant their consent.

7. WILL THE SECTIONAL TITLE SCHEME BE EXTEDED IN THE FUTURE?

A buyer should be informed whether the developer registered a right to extend to the scheme in 10-or 20-years’ time period. Disclosure of the developer’s right to extension should be contained in the Deed of Sale of the sectional title unit.

Adding to a scheme can substantially change the look and feel of a development not to mention the value of your investment. Developing a scheme further can also have financial implications that may not necessarily be in your favour. Although extending the scheme may increase the pool of levy-paying owners, the new phase may require more maintenance and repairs which may mean an increase in the levies of the sectional title scheme.

8. WHO IS THE MANAGING AGENT AND DO THEY HAVE SUFFICIENT FIDELITY COVER?

It’s likely that the trustees outsourced the management of the scheme to a managing agent, which means that other parties have access to the body corporate’s bank accounts.

A managing agent that collects and/or receives levies is deemed to be an estate agent, and as such, must be a member of the Estate Agency Affairs Board (“EAAB”). In fact, it is unlawful for someone who is not an EAAB member to collect a scheme’s money. EAAB membership means that the body corporate’s funds must be held in a trust account which will be protected by the EAAB fidelity fund.

The disadvantage of the EAAB fidelity fund is that a claim can proceed only once the people who stole the money have been sequestrated. Therefore, you should make sure that the managing agent has taken out its own fidelity insurance that covers every employee who handles the sectional title scheme’s money.

You should also check whether the managing agency operates a “bucket account”, which means the funds of all the schemes the agency manages are in one account, instead of each body corporate having a separate bank account in its own name. A dedicated account makes it much easier for the
trustees to keep a check on inflows and outflows of the money of the scheme. With a bucket account, the trustees depend on reports from the managing agent as to the body corporate’s financial affairs.

You should find out what measures the trustees have put in place to exercise control and supervision of the body corporate’s money.

Trustees and employees of the body corporate can also steal scheme money. Most sectional title insurance policies include cover against fraud and theft by trustees and scheme employees, but the limit is usually quite low (about R50 000). The trustees should put indemnity insurance on the agenda
of the annual general meeting, but it is the responsibility of the body corporate to decide whether or not to take out such insurance and, if it does, the extent of that cover.

9. IS THE PROPERTY INSURED SUFFICIENTLY?

The Sectional Titles Act requires a body corporate to take out an insurance policy that covers the buildings to their full replacement and not market value. This policy, which will cover the risks commonly associated with a residential property, applies to the entire property, not just the common
areas. Before the Annual General Meeting, there should be sent a schedule setting out the replacement values of each section.

In too many cases, the trustees simply increase the level of insurance in line with inflation each year and over time, this can result in the property being under- or over-insured.

If the scheme consists of more than about 1 O units, the property should be valued by a professional valuer every two to three years. Insurance premiums are included in the monthly levy. Unless the body corporate has amended the relevant management rule, owners are liable for the excess on claims for damages to their sections. The body corporate’s insurance policy will not cover household contents.

10. WILL THE SECTIONAL TITLE SCHEME REALLY SUIT MY LIFESTYLE?

It is really important to assess whether the sectional title scheme will really suit your lifestyle and whether you can live with the three main sources of conflict in sectional title schemes namely the three p’s which consist of pets, parking and people.

  • Pets. A body corporate’s policy on keeping pets’ dogs, will be set out in its conduct rules. It is not unusual for the body corporate to make keeping a dog conditional on obtaining the trustees’ written permission and to place restrictions on the types of dog that can be brought onto the property. If you see animals on the property, don’t assume that the scheme is pet friendly. A body corporate may have created a “no dogs” rule, but the rule could include a “grandfather clause” to enable residents who owned dogs before the rule was registered to keep them until their animals die.
  • Parking. It is unlikely that a sectional title scheme will ever have enough parking bays to accommodate the vehicles of every resident. Trustees are under no obligation to find or create parking if there is a shortage. The onus rests on you to ascertain whether there will be sufficient parking for your household’s vehicles. It is incorrectly assumed that if a scheme
    has visitors’ parking, these “spare” bays can be allocated to residents. Providing visitors’ parking is a town planning requirement, and each municipality has a formula that determines the number of bays a scheme must set aside for visitors’ cars. It would be unlawful for the trustees to allocate these bays to residents, although it is not unusual for trustees to allow residents to park there during “off-peak” times if the bays are not occupied by visitors’ vehicles.
  • People. All sectional title schemes are governed by the same laws and regulations, but the character and living environment of each scheme depends on the type of people who live there. The higher the ratio of resident-owners to tenants, the greater the probability that the scheme will be well run and conflict kept to a minimum. The profile of the residents in a scheme is often determined by where it is located and its facilities. A building near a university campus is likely to attract students; an upmarket scheme out in the suburbs will probably have an older age profile. If a scheme has a swimming pool or recreational facilities, you will probably be the odd one out if you insist on peace and quiet on Saturday and Sunday afternoons.

In summary, there are legislation regulating the rights of a Sectional Title owner and we trust this information is helpful in making an informative decision. Fell free to contact our offices for an appointment if you have any further enquires.

Boedels en Testamente

Hierdie is ‘n onderwerp wat partykeer vermy word, maar ongelukkig kan dit negatiewe gevolge inhou vir die geliefdes wat ‘n persoon agterlaat by sy/haar afsterwe indien daar nie aandag gegee word aan die opstel van ‘n behoorlike Testament nie.

Hoekom is dit belangrik om ‘n Testament te hê?

Die opstel van ‘n Testament is vir die meeste mense die eerste stap van
Boedelbeplanning. Al het iemand moontlik nie omvattende boedelbeplanning nodig nie, het almal van ons gewoonlik tog die begeerte om deur ‘n Testament aan te dui hoe jou besittings/eiendom na jou dood verdeel moet word. Wanneer jy nie meer daar is om te se hoe jou besittings verdeel moet word nie, is jou Testament dus die enigste middel om jou laaste wense en wil oor te dra aan jou naasbestaandes, en tree in
werking by afsterwe.

Wat gebeur indien ek sou sterf SONDER ‘n Testament?

lndien jy tot sterwe sou kom sonder ‘n Testament, of indien jou Testament ongeldig verklaar word , sal dit veroorsaak dat die boedel volgens die bepalinge van die Intestate Erfreg verdeel word waarvan die voorskrifte vervat is in die Wet op Intestate Erfopvolging 81 van 1987.

Watter vereistes word deur die Wet gestel om ‘n geldige Testament te hê?

Die Suid Afrikaanse Reg laat die vryheid van testasie toe, wat beteken dat daar geen verpligte erfreg of verdeling bestaan nie en jy vry is om jou laaste wense en wil uit te spreek soos jy wil en aan wie jy wil. Daar is wel sekere vereistes waaraan ‘n geldige Testament moet voldoen, en dit sluit in:

  1. Bevoegde Testateur/Testatrise:

    Enige iemand bo die ouderdom van 16 jaar wat bevoeg is om die uitwerking van sy Testament te verstaan, is bevoeg om ‘n Testament te kan hê.
  2. Ondertekening:

    Wanneer die Testament opgestel is, moet dit in die teenwoordigheid van ten minste twee bevoegde getuies onderteken word . Die getuies moet teenwoordig wees wanneer die testateur teken aangesien hulle nie die inhoud van die Testament attesteer nie maar wel die handtekening van die testateur. lndien die Testament uit meer as een bladsy bestaan, moet elke bladsy deur die Testateur onderteken word en die getuies die laaste bladsy. (Ons laat steeds die getuies elke bladsy onderteken vir volledigheidhalwe.)
  3. Bevoegde Getuies:

    ‘n Bevoegde getuie is enigeiemand van 14 jaar en ouer wat by die
    ondertekening van die Testament bevoeg is om getuienis in ‘n geregshof af te lê. lndien die getuies onbevoeg is sal dit veroorsaak dat die Testament ongeldig verklaar word. Geen benoemde begunstigde in die Testament mag as getuie teken nie, en is dit dus belangrik dat die getuies onafhanklik staan van die testateur, anders kan ‘n persoon wat in die Testament benoem word as begunstigde, se benoeming nietig verklaar word indien hy die Testament as getuie onderteken het.

Wie stel ek aan as die Eksekuteur en beredderaar van my boedel?

By afsterwe tree jou Testament in werking en moet die Eksekuteur dan jou Testament interpreteer om jou bedoeling te bepaal. Hy is verantwoordelik vir die bereddering deur beheer oor al jou bates te neem, laste te betaal en uitbetalings aan die erfgename te doen. Die Meester van die Hooggeregshof is verantwoordelik vir die aanstelling van die Eksekuteur wat jy in jou Testament nomineer.

Hoewel dit jou vrystaan om enige persoon te nomineer as Eksekuteur, is dit altyd raadsaam om ‘n deskundige, soos ‘n Prokureur, aan te stel vir hierdie doel aangesien hierdie persoon regtens verantwoordelik is teenoor die Meester en al die belanghebbendes vir die behoorlike uitvoering van sy pligte.

Die Meester kan Sekuriteit-stelling van ‘n Eksekuteur versoek vir die behoorlike uitvoering van sy pligte tensy daar afstand gedoen is in die Testament. Die wet skryf Eksekuteursvergoeding voor teen 3,5% van die bruto waarde van die boedel en 6% van die bruto inkomste na datum van dood. lndien die Eksekuteur geregistreer is vir BTW, sal BTW bygevoeg word. Die koste kan vooraf onderhandel word en in die
Testament vervat word om enige onduidelikheid te vermy.

Ek is getroud. Moet ek en my eggenote ‘n gesamentlike Testament opstel of
elkeen afsonderlik? 

lndien jy binne gemeenskap van goedere getroud is beskou die reg jul boedel as een gesamentlike boedel en maak dit dus geen verskil of jul ‘n gesamentlike Testament of afsonderlike Testamente het nie en het elke eggenoot dus ‘n 50% aandeel in die algehele boedel.

lndien jy buite gemeenskap van goedere getroud is, hang dit ook af of jul met die aanwasbedeling getroud is of daarsonder. Dit is dan ook jul keuse of jul ‘n gesamentlike Testament, of afsonderlike Testamente wil opstel waarin elke party tot die huwelik sy bates kan bemaak na goeddunke, afhangende van die aanwasbedeling.

Hoe gereeld moet ek my Testament hersien?

Dit is raadsaam om jou Testament ten minste elke drie jaar te hersien. lndien enige belangrike veranderinge plaasgevind het soos: die afsterwe van ‘n begunstigde; die geboorte van ‘n nuwe erfgenaam; indien jy in die huwelik getree het of intussen geskei is; bates bygekry het in byvoorbeeld die vorm van vaste eiendom of dit intussen verkoop het, moet die Testament so spoedig moontlik aangepas word om vir enige
gebeurlikheid voorsiening te maak.

Ter Afsluiting:

Die belangrikheid van ‘n behoorlike en wettige Testament kan nie meer beklemtoon word nie. Dit is van uiterste belang om behoorlike uitvoering te kan gee aan jou laaste wil en wense, en word dikwels agterwee gelaat met die gedagte dat daar nog genoegsame tyd sal wees om jou Testament te laat opstel.

Volgende keer sal aspekte soos Eksekuteurskoste, Boedelbelasting,
Kapitaalwinsbelasting en Oorsese-bates aangespreek word. Daar is heelwat faktore wat ‘n rol speel in behoorlike boedelbeplanning en elke persoon se omstandighede is uniek.

Ons firma kan u behulpsaam wees in die opstel van ‘n Testament en is u welkom om ‘n afspraak te maak.

Ons kantore is gelee te:
22 Scheide Straat
Jeffreysbaai, 6330

Kontak ons gerus op (042)293-3333 of estates@attorneys.law.za

Huweliksvoorwaardekontrakte

Wat is ‘n Huweliksvoorwaardekontrak:

Dit is n kontrak wat die huweliksgoederebedeling tussen man en vrou reel en die persone moet bevoeg wees om so ‘n kontrak aan te goon en die persone moet mekaar trou no sluiting van so ‘n kontrak.

Wat gebeur as ek NIE ‘n Huweliksvoorwaardekonfrak sluit en in die huwelik tree?

Die partye is dan outomaties binne gemeenskap van goedere getroud en kan slegs ‘n Huweliksvoorwaardekontrak bewerkstellig deur middel van ‘n Hooggeregsaansoek waarin die Hof genader word vir toestemming om ‘n HVK te sluit no die sluit van ‘n huwelik. Dit is ‘n baie duur proses wat vermy kan word deur voor jou troudag die nodige Huweliksvoorwaardekontrak te sluit.

Wat beteken dit as persone binne qemeenskap van goedere getroud is?

  1. Die persone se bates maak deel uit van ‘n gesamentlike boedel en bemoeilik dit boedelbepanning in sekere gevalle.
  2. Partye in so ‘ n huwelik se bates is blootgestel aan die risiko’s van siviele eise of in geval van sekwestrasie van een van die partye sal dit sekwestrasie van die gesamentlike boedel beteken.
  3. Vaste eiendom kan byvoorbeeld nie net op een persoon se naam gekoop word nie maar moet op beide partye se name registreer word.

Hoekom ‘n Huweliksvoorwaardekontrak?

Die oogmerk van ‘n Huweliksvoorwaardekontrak is om die gemeenskap van goedere en van wins en verlies van die huwelik uit te sluit en die aanwasbedeling hetsy in of uit te sluit.

Wat is die aanwasbedeling:

‘n Eenvoudige verduideliking is die waarde wat ‘n party in die huwelik se boedelwaarde gegroei het vanaf sluit van huwelik tot datum van ontbinding van die huwelik as gevolg van dood of egskeiding. Die partye wat se waarde minder is kan ‘n eis instel gelyk aan die helfte van die waarde van die aanwas waarmee sy/haar waarde oorskry word.

Kan minderjariges wat in die huwelik tree ‘n Huweliksvoorwaardekontrak sluit?

Ja, mits bygestaan deur die ouers of voog.

Kan persone van dieselfde geslag ‘n Huweliksvoorwaardekontrak sluit?

Ja, kragtens die “Civil Union Act 17 van 2006” kan huweliksmaats in ‘n siviele verbintenis ‘n geldige huweliksvoorwaardekontrak sluit en registreer.

Wie kan ‘n Huweliksvoorwaardekontrak opstel:

  • Slegs ‘n toegelate en praktiserende Notaris mag ‘n Huweliksvoorwaardekontrak attesteer. Die Notaris mag nie ‘n persoonlike belang by die kontrak he nie.
  • Die Huweliksvoorwaardekontrak moet binne 3 maande no die ondertekening voor die Notaris in die Aktekantoor geregistreer word en indien buite Suid- Afrika onderteken binne 6 maande no die ondertekening in die aktekantoor geregistreer word.

Watter inligting word benodig deur die Notaris:

  • Die partye se ID dokumente, indien minderjarig die geboortesertifikaat ook, Maatskappy en polisnommer indien sekere polisse daarin vermeld goon word. Opsomming van bates van albei partye.
  • lndien ‘n derde party ‘n skenking van ‘n bate aan een van die partye sal hy/sy ook ‘n party tot die huweliksvoorwaardekontrak wees.

Kan ‘n Huweliksvoorwaardekontrak gewysig word?

  • Die partye kan voor sluiting van die huwelik die kontrak wysig of kanselleer aangesien dit eers regskrag kry no die datum van die huwelik.
  • No sluiting van die huwelik kan die huweliksvoorwaardekontrak slegs deur ‘n Hooggeregshof aansoek gewysig word.

Belastingwette:

  • Geen skenkings belasting is betaalbaar op die waarde van eiendom wat ingevolge ‘n behoorlike geregistreerde Huweliksvoorwaardekontrak geskenk IS.
  • Geen boedelbelasting is betaalbaar op die waarde van eiendom aan ‘n gade geskenk ingevolge ‘n Huweliksvoorwaardekontrak.
  • Enige aanwas- eis verkry deur of teen die boedel van ‘n afgesterwe gade sal in berekening gebring word vir boedelbelasting doeleindes.

Ter Afsluiting:

Dit is werklik belangrik vir ‘n voornemende paartjie om ‘n Huweliksvoorwaardekontrak aan te goon. Maak ‘n afspraak met ‘n Notaris (Prokureur wat ‘n verdere eksamen afgele het en toegelaat is in die Hooggeregshof om as ‘n Notaris te praktiseer) om aldie opsies te bespreek en die Huweliksvoorwaarde kontrak op te stel \ te registreer.

Ons firma kan u behulpsaam wees en is u welkom om ‘n afspraak te maak.

Onthou om dit ‘n maand of twee vir die troudatum te finaliseer.

Ons kantore is gelee te:
22 Schelde Straat
Jeffreys Baai, 6330

Kontak ons gerus op 042 293-3335 of reception@attorneys.law.za.

Marriage Contracts – Never to be skipped

Marriage Contracts

Too often the purpose of marriage contracts is associated with divorce, but there are much more to having one than that.

A Marriage contract does provide for division of assets on dissolution of the marriage, but not only by divorce, but also by death. You can have a happy marriage for many years and still benefit from the protection a marriage contract.

Property Sales and Deceased Estates

If you are the Purchaser of a property which involves a deceased estate, there are a few essentials of which you should be aware.

When a person passes away, the Master of the High Court appoints an Executor of the Estate to administer the winding up, which includes collection of the assets of the deceased, payment of the outstanding debts and thereafter distribution to the heirs of their inheritance.

Services

Property Law, Conveyancing, Commercial Law, Contract Law, Drafting of Wills,
Trust and Estate Planning, Administration of Deceased Estates and Notarial Work.