Danie Bosman Real Estate Services

27/02/2023

DECEASED ESTATES AND CONVEYANCING
PART 6: SELLING A PROPERTY

It often happens that a PROPERTY MUST BE SOLD after the death of the owner to SETTLE THE DEBTS in the estate. In this case, the EXECUTOR WILL ACT AS THE SELLER in the transaction and must SIGN THE AGREEMENT OF SALE. If a contract is SIGNED BEFORE THE EXECUTOR IS APPOINTED as such by the Master, the CONTRACT IS INVALID.

If the SELLER SOLD THE PROPERTY BEFORE PASSING away, the EXECUTOR MUST DECIDE whether to continue with the sale or not. If the executor chooses to continue, the agreement of sale must be accepted by him before the transaction proceeds.

The NORMAL CONVEYANCING PROCESS IS FOLLOWED for an estate sale, with the EXCEPTION of the MASTER'S CONSENT THAT MUST BE OBTAINED. After the EXECUTOR HAS SIGNED THE TRANSFER DOCUMENTS, the POWER OF ATTORNEY must be lodged at the Master's office. The Master will indicate his consent to the sale by affixing a CERTIFICATE in terms of SECTION 42(2) of the Administration of Estates Act to the POWER OF ATTORNEY. The ESTATE WILL BE LIABLE for the PAYMENT OF THE FEE to obtain this certificate.

TRANSFER DUTY IS PAYABLE ON A PROPERTY that is purchased from the DECEASED ESTATE and the PURCHASER CARRIES ALL COSTS OF THE TRANSFER.

WITH ACKNOWLEDGEMENT TO JJR ATTORNEYS

20/02/2023

DECEASED ESTATES AND CONVEYANCING
PART 5 : INHERITING A PROPERTY

Where a person has INHERITED A PROPERTY, FORMAL TRANSFER of the property must still take place. In such circumstances, the EXECUTOR in the estate will , either in terms of the WILL or INTESTATE LAW, ensure that the property is PASSED to the new owner.

The CONVEYANCER will LODGE in the deeds office the following documents, among others, to support an INHERITANCE TRANSFER:

: A section 42(1) CERTIFICATE in terms of the Administration of Deceased Estates Act which CONFIRMS that the TRANSFER IS IN ACCORDANCE with the LIQUIDATION AND DISTRIBUTION (L& D) account which is PREPARED BY THE EXECUTOR. A Section 42(1) certificate cannot be lodged before the L&D account has lain open for inspection and has been accepted by the Master.

: A COPY OF THE WILL, certified by the Master together with an endorsement by the master that it was accepted.

: If the deceased passed INTESTATE, an AFFIDAVIT FROM THE EXECUTOR confirming same.

: a NEXT-OF-KIN AFFIDAVIT to prove intestate heirs.

Due to the difficulty in obtaining the above documents from the Masters offices and executor, inheritance transfers usually involve a lengthy process. There is however NO TRANSFER DUTY PAYABLE on a property that is inherited.

WITH ACKNOWLEDGEMENT to JJR ATTORNEYS

15/02/2023

DECEASED ESTATES AND CONVEYANCING
PART 4 : THE EXECUTOR

Regardless of whether a person passes away TESTATE or INTESTATE, an EXECUTOR must be appointed by the MASTER OF THE HIGH COURT to administer the deceased estate.

The executor is the person who will ADMINISTER the estate, under the supervision of the Master, and is ENTITLED TO A FEE FOR THE SERVICES RENDERED. The LAW PRESCRIBES that an executor is entitled to 3,5% OF THE GROSS VALUE OF THE ESTATE at the time of death as well as 6% ON INCOME AND EXPENDITURE ACCRUED AND COLLECTED after death, which can be NEGOTIATED with the executor.

Once the EXECUTOR has been NAMED IN TERMS OF A WILL or APPOINTED BY THE BENEFICIARIES OF AN INTESTATE ESTATE, the executor must accept the appointment as executor. Thereafter the MASTER will ISSUE a LETTER OF EXECUTORSHIP, upon wich stage the executor may start the ADMINISTRATION PROCESS.

It is of utmost IMPORTANCE TO APPOINT THE RIGHT PERSON OR ENTITY to act as the executor in order to PREVENT FRUSTRATIONS IN THE WINDING UP PROCESS. It is often challenging to deal with the estate department of large entities who has been appointed as the executor.

ACKNOWLEDGEMENTS TO JJR INC.

27/01/2023

DECEASED ESTATES AND CONVEYANCING PART I

When a person PASSES away, a DECEASED ESTATE comes into existence. At the moment of death, the estate is frozen and no person may withdraw any funds from the deceased person's accounts or deal with any assets.

A person can die ESTATE (with a will) or INTESTATE (without a will). Regardless of the existence of a will, the DECEASED ESTATE must be REPORTED TO THE MASTER OF THE HIGH COURT before the estate content can be dealt with.

The estate should be reported within 14 DAYS after death to the Master's office in whose jurisdiction (region) the deceased was LIVING 12 MONTHS before passing.

Any person who has CONTROL of the deceased's assets or is in POSSESSION OF THE WILL may report the estate to the Master. After the estate has been reported, the Master will ISSUE A LETTER OF EXECUTORSHIP which allows the appointed executor to WIND UP the estate. Only after this letter has been ISSUED, the executor may START DEALING with the deceased's assets.

WITH ACKNOWLEDGEMENT TO JJR ATTORNEYS

05/01/2023

Affordable, neat and private garden cottage to rent! Ideal for Teachers, Students or Single People.

2 Bed Garden Cottage in Hennopspark, 241 Acacia Road, Calling on newly weds, students or teachers from Hennopspark Primary School and Zwartkop High School! We have the perfect place for you to rent at an affordable price. Neat, fair sized, cosy and pri...

05/01/2023

Immaculately presented apartment for the decerning buyer. If you just want to move in, you have to view this unit now. It is immediately available. You can pay occupational rent while waiting for your deal to get registered. Situated in the new and modern Amberfield City, this unit is sure to impres...

17/10/2022

SPLUMA CERTIFICATES FOR MPUMALANGA TRANSFERS

In the Supreme Court of Appeal judgement handed down on 17 June 2022, the COURT RULED that the MUNICIPAL BY-LAWS which require a SELLER to PROVIDE A SPLUMA CERTIFICATE before registration in the MPUMALANGA DEEDS OFFICE is UNCONSTITUTIONAL and INVALID.

In the case of Govan Mbeki Local Municipality and Another v Glencore Operations South Africa (Pty) Ltd and Others the court stated that the relevant BY-LAWS IMPOSE AN EMBARGO on transfers, which STRAY BEYOND THE SCOPE of municipal planning and PREVENT SELLERS from fulfilling their obligations in terms of the contract of sale.

It was confirmed that the land use BY-LAWS issued by Govan Mbeki, Steve Tshwete & Emalahleni MUNICIPALITIES are INCONSISTENT WITH SECTION 25 of the CONSTITUTION in that they amount to an arbitrary deprivation of property and that they fall outside the normal scope of a municipality's law-making powers.

The Govan Mbeki & Emahlahleni MUNICIPALITIES are APPEALING THIS DECISION and a SPLUMA certificate is still required for properties in these municipalities. The MPUMALANGA REGISTRAR OF DEEDS has indicated since Steve Tshwete municipality did not appeal the decision, NO SPLUMA CERTIFICATE is necessary for properties in that JURISDICTION (Middelburg).

With acknowledgement to JJR Attorneys.

10/10/2022

WHAT IS EXPECTED FROM A PROPERTY PRACTITIONER WITH A MANDATE TO SELL : PART 2 - PPA

The PROPERTY PRACTITIONERS ACT (PPA) is a CONSUMER-FOCUSED piece of LEGISLATION, designed to PROTECT CONSUMERS in the property industry. Other than the mandatory disclosure form which must be in place before a PROPERTY PRACTITIONER (PP) may accept a MANDATE, the PPA also REGULATE UNDESIRABLE PRACTICES AND CONDUCT. Chapter 9 and 10 of the Act, Chapter 7 of the Regulations and specifically Regulation 4 which contains the REVISED CODE OF CONDUCT must be kept in mind when dealing with consumers.

Regulation 34.2 provides that a PP MAY NOT ENGAGE in any conduct which brings the INTEGRITY OF THE PROFESSION INTO DISREPUTE, must at all times act in the BEST INTEREST of their clients, and may NOT ACCEPT A MANDATE if the PP does not possess the NECESSARY SKILL set to give effect to the terms thereof.

If a mandate includes a PROVISION which states that there is NO OBLIGATION TO SELL, such a provision will be CONTRARY to the spirit and purport of the MANDATE AGREEMENT and will fall short of the requirements in terms of the PPA and CPA.

03/10/2022

WHAT IS EXPECTED FROM AN AGENT WITH A MANDATE TO SELL?
PART I - CPA

The provisions of both the CONSUMER PROTECTION ACT (CPA) and the PROPERTY PRACTITIONERS ACT (PPA) must be kept IN MIND by the AGENT when acting in terms of a MANDATE TO SELL PROPERTY. Both of these legislation was drafted with CONSUMER PROTECTION in mind and imposes PENALTIES on the agent if the provisions are not followed. According to the CPA an ESTATE AGENT

is considered to be a SUPPLIER OF SERVICES and the SELLER THE CONSUMER.

The CPA REQUIERS that a WRITTEN MANDATE be drafted in UNDERSTANDABLE LANGUAGE and must contain NO TERMS which are UNJUST, UNREASONABLE or UNFAIR. Where a SPECIFIC TERM LIMITS the AGENT'S LIABILITY or RISK, such a CLAUSE must be BROUGHT to the SELLER'S SPECIFIC ATTENTION. The SELLER also has the RIGHT TO QUALITY, PROMPT and PROFESSIONAL SERVICE in terms of the mandate.

If a mandate DOES NOT COMPLY WITH THE CPA, both the AGENT AND THE AGENCY can be REPORTED to the CONSUMER TRIBUNAL.
With acknowledgement to JJR Attorneys

13/09/2022

WHEN IT RAINS, IT POURS

Another wet summer is predicted by the South African Weather Services as the La Nina weather system remains present. Record rainfall is usually paired with LEAKING ROOFS and rising DAMP in the property industry.

The MANDATORY DISCLOSURE FORM gives the SELLER the OPPORTUNITY TO DISCLOSE the EXISTENCE of any LEAKES or DAMP ISSUES that the SELLER IS AWARE OF. Once a DEFECT is DISCLOSED by the seller, it is the RESPONSIBILITY of the PURCHASER to TAKE NOTE thereof and MAKE AN OFFER with that in mind, or negotiate a condition in their offer that the seller must repair the leak or damp.

If a leak or rising damp is DISCOVERED AFTER SIGNING of the agreement, the PURCHASER will only have a CLAIM AGAINST THE SELLER if it can be PROVEN that the SELLER KNEW about the leak or damp and DELIBERATELY did not DISCLOSE the existence thereof. Such a claim will place huge administrative and financial burdens on the new owner and will not always be finalized in the new owner's favour.

UTILISE THE SERVICES OF A SPECIALISED HOME INSPECTION COMPANY to minimize the risk involved with purchasing a property. I proudly support Sherlock Homes to assist in these circumstances.

With acknowledgement to JJR Attorneys