The property market in South Africa at the moment is a cutthroat one.

Rental properties are in short supply, while the demand for homes is ever increasing as people struggle to raise the appropriate home loan to buy a property. This demand often leaves potential tenants arriving at a rental property only to find they are competing with 15 others, all applying for the same property to rent.

While this creates a difficult situation for potential tenants, landlords are forced to filter several applications trying to figure out who the “best” tenant might be.

Meyer de Waal, an owner of a rental property, recently faced this exact problem;

“I recently advertised a flat to rent and had 12 potential tenants all arriving at the same time, with 5 of them begging me to rent the apartment.”

Meyer was forced into the challenging task of working out who to rent the apartment to.

“I couldn’t judge the application on appearance alone,” Meyer went on to say. “ The risk of accepting a tenant on the spot, without first checking into their financial situation, ability to pay a deposit or references from previous landlords, is simply too great.”

The pitfalls of renting don’t stop with the application process.

Often potential tenants are required to pay an upfront rental deposit, of 1 or 2 month’s rental to secure the property. This leads to severe cash-flow problems for the tenant as they most likely paid a similar deposit on their existing rental property, which their current landlord will most likely only release 7-14 days after they have vacated the current premises.

“I recently applied to rent an apartment in Tamboerskloof,” Mandy B said. “I was asked to pay an upfront deposit of R20 000, equal to 2 month’s rent. The problem was my previous landlord only released my current deposit 14 days after I moved out of that apartment and it meant I had to have R 30 000 available as rental deposit, which included  one month’s rental payment upfront, to secure my new apartment.”

Starting a Revolution

The comprehensive revolutionary new service aims to solve this problem by:

• Streamlining the entire rental process
• Pre-approval and checking of Tenants before ever applying. This way landlords and agents not only get the best possible tenants but also cut down on the time taken to run all the necessary checks that usually occur after they receive an application.

• Comprehensive Fulfilment Process
• An A-Z process on-behalf of the tenant and landlord. Supported by a stringent due diligence process, each tenant is screened for credit worthiness and their monthly affordability, ensuring that their commitment to landlord can be kept and maintained for the duration of the lease agreement.

• Rental Income Guarantee & Legal Costs cover provided, to ensure:
• Rental to be paid on the first day of each month,
• Rental income is covered for 3 months in case of default,
• All legal eviction costs are covered, should one need to evict the tenant.

• Deposit headaches solved
• A Credit Line is available to raise finance for the required rental deposit and relocation costs for the tenant.

• Lease Agreement
• A comprehensive, fully compliant lease agreement is made available, underwritten by a trusted Rental Guarantee Company.

We’ve taken on board the best market leaders as partners to revolutionise the world of modern day property rental says Meyer. The leading peer-to-peer marketplace in South-Africa, backed by Barclays Africa, made available access to a credit line of R100 million to provide tenants with transparent and affordable finance, with personalised interest rates matching their affordability. The finance offered includes up to two months upfront deposit and the first month’s rent instalment as well as relocation costs.

A rental guarantee company with more than 12 years track record will underwrite and guarantee the landlord’s rental income for up to 3 months through the rental guarantee component, before the tenant takes occupation.

“We’re building the next generation rental marketplace, matching pre-qualified tenants to the criteria of landlords,” de Waal went on to say. “Both sides of the table are protected and taken care of as our entire process is frictionless, cost effective and sustainable to the property market.”

This revolutionary service offering relieves both the tenant and landlord of their financial, administrative and practical concerns in a way that simply isn’t offered by the current market.

What About Buying?

There is always an ambition to buy one’s own home and we assist to realise this.

Many tenants rent with the dream to buy their own home at a later stage, either once they have raised enough money for a deposit or they simply need time to improve their affordability or credit score. As an additional value-added service, aspiring home buyers subscribing to the offering will also be supported to prepare themselves to buy their own home in the future.

The tenant rents the property first, securing the option, over time, to buy the property. The product also facilitates the opportunity for a tenant to build up a deposit from a portion of the rental paid and the track record of the tenant is used to support his home loan application, at the end of the Rent2Buy period, to support the home loan application.”

“Rent2Buy is essentially buying a property by renting it first,” Meyer says. “We work with the seller and the potential buyer, helping both to achieve their goal.

For more information contact Meyer de Waal 021- 461 0065 or  This e-mail address is being protected from spambots. You need JavaScript enabled to view it

Many South Africans have seen their dreams of owning their own home dashed over the last few years due to the difficulty in obtaining a home loan and the cost thereof. But, says Meyer de Waal of Oosthuizen & Co Meyer de Waal Attorneys, South Africans should not abandon their dreams of owning a home, but should rather look for solutions to the challenges they are facing.

A major challenge is that banks are declining almost half of all home loan applications, and those who are self-employed have very little chance of obtaining finance. The availability of finance for buying a home is likely to become even more constrained if the government's proposed credit amnesty comes into effect, which will make the banks even more stringent in their credit criteria as they will be unable to assess consumers' full credit histories. 

It is also expensive to get a home loan, because the banks are no longer lending at the prime rate, which now stands at 9%, but apply prime plus rates, which impact the monthly repayments significantly. This often makes the repayments unaffordable in light of consumers' already tight budgets, given the skyrocketing costs of living, as well as the high level of South Africans' debt-to-income ratio. The recent surprise interest rate hike may well signal the upturn in the interest rate cycle, with higher interest rates coming sooner than expected, and this will further increase monthly home loan repayments. 

 In addition, prospective buyers must have substantial savings, because the banks are demanding deposits as high as 15%, and buyers must also cover the significant costs involved in buying a property, such as transfer duty and bond costs.

 However, says de Waal, there are a number of ways in which South Africans can overcome these challenges. "The first is to manage your money prudently, ensuring that you can save a little every month after paying all your expenses and build a solid credit track record. This will significantly improve your chances of getting a home loan approved. The second is to look for alternatives, such as the Rent-to-Buy approach and instalment sales." 

 The Rent-to-Buy (R2B) concept allows home buyers to secure and occupy the home they want now, even though they cannot obtain a home loan. Essentially, the home buyer rents the property at a higher than average rental for a year or two, with the option to buy the property at the end of the rental period, but at a purchase price fixed at the beginning of the rental period. Over the rental period, the potential homeowner builds up a solid track record of paying a monthly rental amount equivalent to monthly bond instalments, which will provide the banks proof that the buyer can afford the bond repayments. In addition, the monthly amount paid above the market-related rental can be used to build up a deposit. In this way, buyers can secure and occupy their dream home now, while building up a payment track record and saving up a deposit which will greatly improve their chances of obtaining a home loan at the end of the rental contract.

Another option is an instalment sale, in which the buyer offers to pay the seller monthly instalments over five years to settle the purchase price. Often, 
the buyer will simply take over the seller's current bond repayments, with a commitment to settle the full outstanding bond amount within five years, either by paying additional amounts into the bond over the five-year period, or by obtaining a loan to settle the much-reduced balance before the end of the five-year period. 

 This approach is made possible through the Alienation of Land Act, which provides solid protection for both the seller and the buyer through a specialised contract between the parties. The benefit to the buyer is that he/she does not have to obtain a home loan, while the benefit for the seller is that the property can be sold immediately, which is often the most important consideration for many distressed sellers who can simply no longer afford the property, need to relocate urgently for work purposes or want to vacate the premises as soon as possible following a death or divorce. 

De Waal suggests that South Africans who are serious about owning a home and cannot obtain home loan finance should seek expert help to make their homeownership dreams come true. "Don’t simply abandon your dreams of owning a home. There are alternative approaches beyond getting a bond application approved, and with the right expertise and assistance, you can make your dream a reality."

Prospective homeowners who want to improve their chances of obtaining a home loan can join the MyBudgetFitness (MBF) Club at www.budgetfitness.co.za, which includes rehabilitating credit records, setting up and maintaining a monthly budget through a mobile app (Mobile2Budget.co.za) and online resources, as well as benefiting from the guidance and assistance of a personal MBF trainer. 

If you are interested in the Rent-to-Buy concept, visit www.irent2buy.co.za, where you can download a brochure on how to get started and view properties already available on this basis. For more information about instalment sales contracts, please visit www.oostco.co.za.

The face of home ownership in South Africa is continuing to change as more black middle class homeowners move into the increasingly affluent suburbs; while the previously disadvantaged now comprise more than 50% of home buyers. Although strict loan requirements remain a hurdle to be overcome for those wishing to get onto the first rung of the property ladder, structures such as Rent2buy in affiliation with My Budget Fitness, are paving the way to a more prosperous future. Rent2buy was developed to assist frustrated sellers and buyers who fail to conclude a purchase and sale transaction of a property as a result of the decline of the home loan application of the buyer. Through the rent2buy concept, the buyer gets the opportunity to secure the property, with a right (an option) to buy the property say 6- 12 or 24 months later, once the buyer had the opportunity to improve his affordability and or credit profile,depending the reason why the bank declined the bond in the first place. During the rent2buy period a higher rent than the normal market related rent is usually paid – close to a bond repayment instalment – and the additional rent is credited towards a deposit for the buyer – with the result that once the buyer is ready to exercise the option to buy – he now has a much improved credit profile and affordability, plus a deposit, which all will improve his chances to secure a home loan. The buyer is assisted during the rent2buy period with a mentor and education how to go about to buy and eventually own his own home, plus budgeting tools developed exclusively by My Budget Fitness for this purpose. The education and mentorship on budgeting and home ownership continues after transfer of ownership is taken, to ensure sustainable home ownership for the new home owner.

Never a Better Time to Buy

Buying is almost always preferable to renting. After all, paying rent for a property which will never be owned, instead of paying a comparable amount for a house is logically more beneficial. Property is not getting cheaper and it is very much a buyers’ market right now with mortgage rates at their lowest for the last 4 decades. Investing in property now means that in 15 years’ time, most homeowners will have made a significant dent in reducing the capital borrowed to fund the purchase. While borrowing is reduced, the home is also increasing in value resulting in a win/win situation.

While it may be slightly cheaper to rent rather than buy at the present time, the economic models on which statistics are based assume that renters could invest their money elsewhere. However, given that the rate of saving has declined since the 1970’s (when it stood at around 6.6%) to negative levels in today’s market, this is unlikely. Over a 10-15 year period, renters will spend slightly less than they would on mortgage payments, but would have nothing to show for it. At the current time, investing in buying a home means that buyers could end up at the end of a comparable period with an asset worth double the original purchase price you paid for it.

Home Owners Insurance

As part of the agreement for the mortgage bond granted to you by the bank, homeowners will be required to take out a comprehensive insurance policy equal to the value of your home, usually with the bank itself. This is so that the cost of repairing or rebuilding the house is covered in the event of catastrophe. Home owners insurance will not only cover the structure of the building, but also eventualities such as: burst geysers and any consequential damage; fixtures such as bathrooms and fitted kitchens; as well as often being extended to cover garages, greenhouses and other external features such as walls and fences. The usual criteria is that if the fixture cannot be easily removed and ported to a new home, it will be covered. The insurance also allows for temporary re-housing in the event of the home being uninhabitable for the duration of any repair work which may prove necessary.

There are a number of advantages to taking out home owners insurance with the bank that grants the bond. Usually the bank’s premiums are very competitive and often less expensive than buying elsewhere. It is easy to apply for the insurance because it is linked to the bond, with no administrative or review fees payable, neither will there be any penalties for previous claims or for submitting a claim in the event of a problem.

Black Property Ownership

With total home ownership in South Africa standing at 65%, much higher than, for instance, Germany and on a par with the United States where ownership stands at 66%, ever increasing numbers of people are choosing to take the step up to owning their own home. Between 1994 and 2011, the government has built over 3 million houses, predominantly for black households, and banks have been focused on paving the way for black ownership with most banks giving 100% loans to households with earnings of under R16,000 a month.

Black ownership of South Africa’s primary residential market stacks up to 41.7%, emphasising the radical change which has taken place in the market place since the mid 1990’s.

Johannesburg has seen the largest shift in home buying, which is favoured for its proximity to Soweto. Suburbs such as Ormonde, Meredale, Kibler Park and Ridgeway have all seen significant rises in black middleclass home ownership. The greater Randburg area has seen a rise in middle income black buyers working in both financial and corporate sectors. More than 50% of buyers are now from the black middle class demographic.

Transfer Duty Paid

Transfer duty is payable when existing dwellings are purchased (on new houses, VAT is payable). Therefore, the cyclical movement in this particular tax can be regarded as a good proxy for the well-being of the residential property market.

To determine real trends, one needs to adjust the nominal values for house price inflation and for changes to the rate of transfer duty payable.  At the moment the threshold for the payment of transfer duty relates to houses that change hands for more than R600 000. This threshold is meant to make it more affordable for middle class people to own their own home.

The three accompanying graphs, reflecting data up to May 2013 and show the following:

1. That, in nominal terms, the level of the indicator has recovered from the December 2011 slump.
2. That, in real terms (stripping inflation out and adjusting for transfer duty rate changes), a sharp rise in the level of transfer duty is evident.
3. That the real smoothed annual percentage change is currently 11.3%. This finding represents a dramatic improvement because the annual decline in January 2012 was -31.3%.

Due to the drop in mortgage rates during July 2012, it is quite likely that this indicator could improve further in coming months, reflecting better business conditions in the residential property market.  We expect this revival to be modest because of the still high debt levels of consumers and low growth in mortgage lending figures.

One can assume that most existing dwellings are financed with mortgage bonds.Because both indicators are related to the residential property market, one could reasonably expect that movements in mortgages advanced for dwellings could be closely linked to movements in transfer duty paid.

It makes sense to compare these two indicators that function as proxies for the well-being of the residential property market. Observe in the next graph that the cyclical movements, expressed as annual percentage changes, are remarkably close.  

 Where the correspondence is not that close, the divergence can be explained by means of changes to transfer duty rates or increases in threshold levels (e.g. 2005, resulting in a loss to the Fiscus).One can also observe the dramatic drop in these key indicators during the global financial crisis of 2008/09.  During this period the residential property market suffered severely.

Recent trends are positive and it looks like national market conditions are improving. There is clear evidence that the market has finally turned. Observe that the Transfer Duty Paid indicator is in positive territory, but that the movement in Loans Granted has turned negative.

There is a publication lag of three months, with Loans Granted being the lagging indicator.  Weak loans data in July-Sep 2012 could explain this divergence. The latest data to March 2013 suggest that Loans granted could be turning the corner.

Home ownership is a failsafe method to assist aspirant first time home owners living especially in townships to escape the poverty trap. This is the message of MEC for Human Settlements, Minister Bongikhaya Madikizela at the launch of the Consumer Housing Education Programme in Khayelitsha last week.

Minister Madikizela referred to the difficult task of local government providing sufficient housing and related services particularly in the Western Cape area. The Western Cape currently has inflows of thousands of people migrating into the Western Cape region every month, which puts massive strain on local services. The WC Government main focus is to first provide the basic needs like water, sewerage and sanitation services before they can embark on a proper housing scheme for those living in shacks.

Minister Madikizela lauded the initiative by private companies and stakeholders in the property industry to get together stand together and develop a Consumer Property Education programme for first time buyers as well as sharing their skills and their resources. Currently, no housing education exists for first time buyers or new homeowners in the GAP market.

The attendees of the Khayelitsha forum were all hand-selected stakeholders from Local Government, City of Cape Town and other Municipalities, ward counsellors, NGO organizations, community leaders, banking and finance institutions, property developers, mortgage originators, and representatives in the corporate and private sector.

• Meyer de Waal CEO of My Budget Fitness introduced the Consumer Property Education programme for first time home buyers in “Six Easy Steps” to the stakeholders.
• Solly Molefe, Owner of Setsmol followed up and shared his experience on the importance of Consumer Property Education, flowing from his 11 years as educator and mentor in the Consumer Education environment.
• Gary Power, Marketing Manager of Power Developments focused on the importance of a property developer’s role of creating a community of new home owners. Through Consumer Property Education it can empower new homeowners with information to take action and for them to understand their rights and duties as a prospective property owner. Research done by Power Developments also highlighted the need for consumer education for homeowners.
• Daphne King, from the City of Cape Town welcomed the collaboration of role players in the private sector to work with Government and Local Authorities in partnership to expand the concept of consumer education for First Time Home Owners. The City of Cape Town has already implemented consumer education for the BNG type housing, but realised no such product exists for the Gap Housing segment of the market.

The contributors to the ‘Consumer Property Education’ programme for First Time Buyers are:

• Blue Oak www.blueoak.co.za
• Credit Health www.credithealth.co.za
• Law Property www.lawproperty.co.za
• Lightstone www.lightstone.co.za
• MoneySmart www.moneysmart.co.za
• My Budget Fitness www.budgetfitness.co.za
• Inspect-a-home www.inspectahome.co.za
• ICALL ASAP www.1callasap.co.za
• Real Estate Investor Magazine www.reimag.co.za
• Setsmol www.setsmol.co.za

The rollout of the first Consumer Education for first time buyer seminars and workshops will be held on the following dates:

• 26 June 2013 Mmbatho/Mafikeng – completed with great success
• 18 July 2013 Khayelitsha • 20 July 2013 Observatory
• 27 July 2013 George • August 2013 Blaauwberg
• August 2013 Langebaan

Pictures of the event can be viewed;

• on our website – under “press” - www. consumerhousingeducation.co.za
• or on Facebook www.facebook.com/#!/ConsumerHousingEducation?fref=ts

For more information:

You are welcome to contact Meyer de Waal – This e-mail address is being protected from spambots. You need JavaScript enabled to view it to arrange for your own clients to receive an invite to such seminars, or if required, to host a seminar under your exclusive “branding”.

Om ‘n eiendom in ‘n deeltitelskema te besit of huur, kan heelwat meer verpligtinge plaas op die eienaar of huurder ten opsigte van die nakoming van reëls en regulasies as wat van toepassing mag wees op ‘n eienaar of huurder van ‘n vol-titel eiendom. Die rede hiervoor is dat die regte van al die eienaars en huurders beskerm moet word ten einde almal in staat te stel om die volle genot van hul eiendom te hê. As jy dus ‘n eenheid in ‘n deeltitelskema besit of huur lees verder en let op die wyer stel reëls wat relevant mag wees tot jou.

Die inwoner van ‘n deeltitelskema se optrede is nie net onderhewig aan die bepalings van die Wet op Deeltitels (‘die Wet’) nie, maar ook aan die bestuursreëls en die gedragsreëls wat deur die Wet geskep word.

Die bestuursreëls bevat bepalings omtrent die bestuur en administrasie van die skema, die vasstelling van heffings, vergaderings en stemregte, wat redelik neutraal ten opsigte van die aard van die skema is. Die gedragsreëls, aan die ander kant, hou meer verband met die aard van die skema en die dag tot dag optrede van die eienaars en bewoners.

Dit is die plig van die trustees van die skema (wat as verteenwoordigers van die eienaars optree) om toe te sien dat die reëls van die skema behoorlik en korrek toegepas word. Reëls kan egter nie alleen die nodige harmonie in ‘n deeltitelbuurt skep nie. Hiervoor is die gesindheid van al die eienaars en huurders nodig. Eienaars en huurders moet streef om in harmonie met die ander inwoners te leef, hulself aan die gesag van die bestuur te onderwerp en bereid wees om ‘n positiewe rol daarin te speel.

Dit gebeur dikwels dat anti-sosiale gedrag van enkele inwoners (deur byvoorbeeld voortdurend harde musiek tot laat in die nag te speel) die harmonie in ‘n deeltitelbuurt versteur en gehoorsame eienaars en huurders moet hieronder lei. Netso kan die wanbetaling van heffings die regspersoon van ‘n skema in ‘n finansiële krisis dompel met agterstallige munisipale rekeninge wat ophoop en noodsaaklike instandhouding wat afgeskeep word en uiteindelik die her-verkoopwaarde van al die eenhede in ‘n skema benadeel.

Dit is ongelukkig so dat die Wet en die standaard reëls (naamlik die bestuurs-en gedragsreëls) minder streng is wanneer dit kom by die toepasing van sanksies in ‘n deeltitelskema. Trustees moet soms moedeloos toekyk terwyl enkele inwoners voortdurend die reëls verontagsaam. Die beste oplossing is om die bestuurs- en gedragsreëls te wysig ten einde trustees in staat te stel om gebruik te maak van effektiewe boetebepalings. Dit is egter belangrik om daarop te let dat boetebepaling in die vorm van sogenaamde ‘huisreëls’ nie afdwingbaar is nie en liefs vermy moet word.

Die skepping van afdwingbare reëls waarvolgens boetes opgelê kan word, verg kundige opstelling en trustees moet dit nie sonder regsadvies aanpak nie. Maar dit kan gedoen word. Alle reëls deur die regspersoon geskep of gewysig moet redelik wees en op alle eienaars van soortgelyke dele op gelykmatige wyse van toepassing wees. Indien ‘n gewysigde reël nie hierdie toets slaag nie, mag ‘n Hof bevind dat dit onafdwingbaar is. Let ook daarop dat ‘n wysiging eers in werking tree wanneer dit by die kantoor van die Registrateur van Aktes geliasseer word.

Transfer duty is payable when existing dwellings are purchased (on new houses, VAT is payable).

Therefore, the cyclical movement in this particular tax can be regarded as a good proxy for the well-being of the residential property market.

To determine real trends, one needs to adjust the nominal values for house price inflation and for changes to the rate of transfer duty payable.

At the moment the threshold for the payment of transfer duty relates to houses that change hands for more than R600 000.

This threshold is meant to make it more affordable for middle class people to own their own home.

The following 3 graphs, reflecting data up to November 2012, show the following:

1. That, in nominal terms, the level of the indicator has recovered from the December 2011 slump.
2. That, in real terms (stripping inflation out and adjusting for transfer duty rate changes), a sharp rise in the level of transfer duty is evident.
3. That the smoothed annual percentage change has risen to 16%. This finding represents a dramatic improvement because the annual decline in January 2012 was -31.3%.

Due to the drop in mortgage rates during July 2012, it is quite likely that this indicator could improve further in coming months, reflecting better business conditions in the residential property market.  We expect this revival to be modest because of the still high debt levels of consumers and low growth in mortgage lending figures.

NCA = National Credit Act Implemented July 2007

One can assume that most existing dwellings are financed with mortgage bonds.

Because both indicators are related to the residential property market, one could reasonably expect that movements in mortgages advanced for dwellings could be closely linked to movements in transfer duty paid.

It makes sense to compare these two indicators that function as proxies for the well-being of the residential property market.

Observe in the next graph that the cyclical movements, expressed as annual percentage changes, are remarkably close.  Where the correspondence is not that close, the divergence can be explained by means of changes to transfer duty rates or increases in threshold levels (e.g. 2005, resulting in a loss to the Fiscus).

One can also observe the dramatic drop in these key indicators during the global financial crisis of 2008/09.  During this period the residential property market suffered severely.

Recent trends are positive and it looks like national market conditions are improving.  There is clear evidence that the market has finally turned.

Wilma en André het onlangs in Sonskyn meenthuiskompleks ingetrek. Saterdagaand vier André sy verjaardag en die partytjie duur voort tot net na twaalf die aand. Maandagoggend ontvang André ‘n skrywe van die bestuursliggaam van die kompleks tot die effek dat hy ‘n R500.00 boete opgelê word aangesien die huisreëls bepaal dat stilte na 23:00 gehandhaaf moet word en dat André hierdie reël verbreek het met sy partytjie. Verstom, wonder André of hierdie boete afdwingbaar is?

Ten einde te bepaal of die boete afdwingbaar is of nie, moet daar eers gekyk word na welke reëls op deeltitelskemas (soos die Sonskyn meenthuiskompleks) van toepassing is. Huidiglik maak die Wet op Deeltitels (“die Wet”) voorsiening vir twee tipes reëls ten einde die bestuur van ‘n deeltitelskema te reël, naamlik bestuurs- en gedragsreëls.

Die bestuursreëls bevat bepalings omtrent die bestuur en administrasie van ‘n deeltitelskema en bepaal onder andere, die vasstelling van heffings, vergaderings en stemreg en is redelik neutraal ten opsigte van die aard van die deeltitelskema. Hierdie reëls kan deur ‘n eenparige besluit gewysig word.

Die gedragsreëls, aan die ander kant, hou meer verband met die aard van die deeltitelskema en die dag tot dag optrede van die eienaars en inwoners. Hierdie reëls kan makliker gewysig word by wyse van ‘n spesiale besluit.

Die Wet maak egter geensins voorsiening vir die oplegging van sogenaamde ‘huisreëls’ nie en gevolglik ook nie vir die oplê van boetes ingevolge hierdie huisreëls nie. Dit blyk algemene praktyk te wees vir trustees (en inwoners) om ‘n stel huisreëls te formuleer en dit van toepassing te maak op die lede van die deeltitelskema. Alhoewel dit maklik opgestel en geïmplementeer kan word, is hierdie tipe huisreëls onafdwingbaar aangesien daar geen voorgeskrewe prosedures vir die skepping en oplegging van huisreëls bestaan nie.

Die regspersoon van ‘n deeltitelskema word kragtens die Wet geskep. Alle handelinge van ‘n regspersoon (en die inwoners) moet dus ooreenkomstig die Wet gemagtig wees. Aangesien die Wet nie voorsiening maak vir die oplegging van huisreëls nie, kan ‘n regspersoon nie sonder meer huisreëls formuleer nie. Die wetgewer wil ongeoorloofde inbreuk op die gebruik en genot van ‘n eienaar ten opsigte van sy deel in die skema vermy en aangesien dit kan gebeur dat die trustees (en/of ‘n klein meerderheid inwoners) huisreëls formuleer en implementeer wat inbreuk maak op ‘n eienaar se gebruik en genot van sy deel, sal sulke handelinge teenstrydig wees met die reg van eienaarskap in die algemeen.

Dit beteken nie dat huisreëls nie gemaak kan word nie, maar word dit eerder aanbeveel dat die bestuurs- en gedragsreëls gewysig word ten einde die trustees in staat te stel om gebruik te maak van effektiewe boetebepalings ensomeer. Hierdie wysigings word deur die Wet bekragtig en kan anti-sosiale gedrag van enkele inwoners (byvoorbeeld voortdurende harde musiek, laataand jolyt ensovoorts) op so manier hok geslaan word. Gehoorsame eienaars (en huurders) hoef dus nie hieronder te lei nie.

Dit is egter belangrik om daarop te let dat die bogemelde nie beteken dat die plig (en gepaardgaande diskresie) wat op die skouers van trustees rus om die gemeenskaplike eiendom tot voordeel van alle inwoners te bestuur aan bande gelê word nie. Die trustees is steeds by magte om algemene riglyne neer te lê wat betrekking het op onder andere:

• die merk van gedeeltes van die gemeenskaplike eiendom vir die was en parkering van motorvoertuie;
• instelling van spoedbeperkings binne die meenthuiskompleks;
• verbod op die gebruik van ‘n hyser deur kinders jonger as 8 jaar oud indien hulle nie deur ‘n volwassene vergesel word nie, ensovoorts.

Die Wet maak nie voorsiening vir die oplegging van huisreëls deur trustees (en/of inwoners) wat boetebepalings bevat nie en sal hierdie onafdwingbaar wees indien dit nie in die bestuurs- en gedragsreëls vervat word nie. Trustees van ‘n deeltitelskema word dus aangeraai om die nodige regsadvies in te win waar dit oorweeg word om sodanige huisreëls te implementeer by die skema ten einde te verseker dat die korrekte meganisme vir implementering gebruik word en die reëls afdwingbaar sal wees.

Recent amendments to the Income Tax Act have made it possible to transfer residential property from a legal entity (trust, company or close corporation) to an individual, without paying transfer duty, capital gains tax, dividends tax or secondary tax on companies.

Important to note is that the window to make use of this tax amnesty is closing with the deadline of 31 December 2012 fast approaching. This begs the question as to whether there is still enough time left to make use of this amnesty before the end of the year and whether it is not already too late?

According to the SARS Guide to Disposal (“the Guide”), it is a requirement that the interest in the residence must have been disposed of by the entity on or before the 31st of December 2012. The Guide specifically states that it is not a requirement that the property be transferred to the individual in the Deeds Office by the 31st of December 2012.

Accordingly, in order to meet this disposal requirement, the date of distribution or the date of sale (depending on the circumstances), must just be on or before the 31st of December 2012. It is also important that the disposal must no longer be subject to any suspensive conditions on the said date, as the date of disposal will then be regarded as the date on which the suspensive conditions were fulfilled, and if that date is after 31 December 2012, the disposal will not qualify for the tax exemption.

What this means is that if you conclude a sale agreement for the transfer of your residential property from your trust into your name, and such agreement is unconditional before 31 December 2012, you will qualify for the tax exemption relating to such transfer, even though the actual registration at the Deeds Office will only take place in 2013.

To qualify for the exemption the following broad requirements must be met:

1. The property must be disposed of to a natural person who is a connected person of the entity as defined in the Income Tax Act.
2. A qualifying residence must be one that is mainly used for domestic purposes by one or more natural persons during the period of 11 February 2009 to the date of disposal by the entity.
3. The natural persons who used the residence mainly for domestic purposes must be connected persons in relation to the entity at the time of the disposal.
4. Within six months of the date of disposal certain specified steps must be taken to terminate the existence of the entity holding the residence.

Persons who are interested in considering utilising this tax amnesty to transfer a residence into their personal names, are urged to not delay and contact an attorney as soon as possible to have the necessary contractual documents put in place and signed before 31 December 2012 in order to qualify for the benefit of the tax amnesty.

A ‘rouwkoop’ clause included in a sale agreement provides for the purchaser to pay a deposit to the seller, which deposit may be retained by the seller should the purchaser decide to withdraw from the agreement. This does not constitute breach of the agreement, but is a mechanism whereby the purchaser legally buys his way out of the agreement.

Most sale agreements providing for the payment of a deposit, also contain a provision that this deposit will be forfeited should the purchaser breach the agreement. The Conventional Penalties Act of 1962 does however provide the purchaser with a remedy if the penalty exceeds the damages, as a Court may be approached for a refund of the difference between the penalty amount and the amount of the actual damages suffered.

The inclusion of either a penalty clause or a ‘rouwkoop’ clause in the sale agreement are effective methods for the seller to ensure that he is dealing with a serious purchaser.