Make the property transfer easy by picking the right conveyancer
Since property transfers are some of the highest-value transactions that you may make in your lifetime, it naturally follows that you need to ensure that you don’t let your money go to waste – especially when choosing someone to handle the process for you. Choosing the right conveyancing attorney can save you a lot of headaches down the road. As COVID-19 hit the shores of South Africa, there was already quite a clear indication of what the medium-term future might hold. Consumer spending dropped across the globe, and investors, in panic, were withdrawing the value from their financial assets. Over the stretch of 2020 in South Africa, this led to the need to stimulate the economy by lowering interest rates. In the middle of it all, the property market stands as a mirror image of the surrounding economy, where conveyancing attorneys are standing on the frontlines, as if fighting in a war. The property market remains an active market right now because those who were adversely affected by the effects of the pandemic are selling off property to make ends meet, while for those who weren’t as adversely affected, there has never been a better time to buy property with sustained low interest rates on property bonds. In the middle of the storm of the active property market are the conveyancers who are doing all the work to deal with the legal aspects of the property transfers taking place. This is why, for the buyers and sellers at the end points, the right conveyancer can mean a world of difference and should not be chosen lightly. A conveyancing attorney is someone who helps both the buyer and seller navigate the terms of transfer of a property that will have consequences far into the future. With these long-term stakes, buying property is a big commitment. Perhaps the only greater commitment you can make in life is getting married. And just as much as you wouldn’t choose just any marriage officer to officiate your wedding, it is also inadvisable to pick your conveyancer at a whim. What, then, are the qualities you need to look out for in a conveyancing attorney? Knowledge and Expertise A Conveyancing attorney, in the simplest of terms, is a lawyer who handles all the legal processes related to the transfer of a property on behalf of the buyer and seller. Since property transfers are high-value agreements, it is necessary that you pick a conveyancing attorney that knows the ins and outs of property law as one misstep can seriously delay the transfer process. Conveyancers are qualified attorneys that have undergone additional training after obtaining their law degree and being admitted as an attorney in accordance with the terms of the Legal Practice Act. However, not all attorneys are created equally. So, choose one that is confident in their ability to handle all the legal matters and that has a track record to boot. Some property transfers might also require specialised knowledge related to restrictions and conditions to the use of the property (such as servitudes). A good conveyancer will be able to point out anything that could become a cause for concern. Accessibility and Transparency When it comes to legal matters, staying up to date is key as things can change quickly and new issues can rapidly pop up. A good conveyancer will be accessible to you and inform you of any new developments in the transfer process. Not only should they keep you up to speed, but should also be available to answer any questions you might have regarding the process. Poor communication is not a good look on a conveyancer. Make sure that your conveyancer is someone that will explain the processes involved in the property transfer as simply as they can. Approachability and trustworthiness A Good conveyancing attorney acts in the interests of both the buyer and the seller. Although the seller has prerogative when appointing a conveyancer for the transfer of their property, the buyer shouldn’t be left to bear the consequences of a poor decision. Therefore, the buyer and seller must find the conveyancer approachable and helpful when required. A conveyancer that acts in the interest of both parties not only smooths the process of the transfer, but also helps to make the entire process an amicable experience. The value of choosing the right conveyancing attorney cannot be overlooked. Peace-of-mind and clarity can go a long way towards making a house a home, while satisfying the seller’s needs as well. Reference list: https://businesstech.co.za/news/wealth/125583/conveyancing-fees-this-is-what-you-are-paying-for/ Conveyancing: Conventional Deeds (Act 47/1937): Guideline of Fees Legal Practice Act No. 28 of 2014 This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)
How your business can do more by doing less
If there is anything that the time of COVID-19 has taught us, it is that technological preparedness is an essential part of running any business. In the past few months, many businesses that did not have the necessary infrastructures in place have struggled to keep up with their competitors who did. The adaptation of technology in the business space has become more prevalent in the past few years and by current trajectories, it seems that neglecting to keep up will come at the business’s expense. The main reason for this is that many businesses are relying on more and more work done outside of the traditional office space. Most modern technologies are equipped to make it possible to work from anywhere and access company data and resources while away from the office. This is thanks to cloud storage and operation. Even if there is nothing done out of office (which is hard to believe), it provides businesses with a secure storage solution that isn’t dependent on files stored on physical hard drives at the office location. Furthermore, technologies also make automation possible. For many tasks that will take a few hours when done manually, an algorithm can do the job much quicker and with better precision. This means that technology can save you a few hours of laborious administrative tasks that are better spent growing your business and making direct contributions to its success. Below we detail a few technologies that your business cannot sensibly go without in the modern business world. The basics Office suite: Without an Office Suite, you are severely limiting the opportunities in your business. Unless you can count your employees on one hand (and even then), an office suite can save you lots of trouble and frustration. The main reason for using an Office Suite is that it creates a centralised point from which your organisation can operate and is not reliant on any one member. Many businesses do not realise the problems that a non-centralised system can cause until one of its members leaves the organisation, where data transfer can be extremely difficult, while removing administrative permissions for the member that leaves. On a practical level, an Office Suite allows easier collaboration between people in your organisation (even allowing them to work on the same files simultaneously). Furthermore, an Office Suite will include all the various applications that make the various digital tasks in your business possible, with cross-application filesharing from the centralised system. Antivirus software: Most of the threats to your business’s security in the modern world will come from digital sources. Ever since people have started storing sensitive information in digital formats, criminals have been trying to obtain illegal access to such information. Without trustworthy anti-virus software, you are making yourself vulnerable to each and every attack and putting your computer and, most importantly, your company at risk. Even with preventative measures, cybercriminals are extremely savvy in the way they attempt to steal sensitive data. Making sure that every employee has a legitimate antivirus program installed on their computer can go a long way to securing your business’s safety. A good antivirus program will also protect against phishing and malware, and will increase the general safety of your employees and systems. Accounting software: If you are a small business, you will need to invest in some form of accounting software. With the complicated nature of payroll, bookkeeping, accounting and taxation, attempting to do everything manually (or even by spreadsheet) could have disastrous consequences. Software can help you keep track of your financial situation while you grow. Naturally, you will not want to go at it alone, and you will need to periodically make use of a bookkeeper or accountant, but having the right software can really smooth the processes as you grow and potentially start looking at hiring a full-time bookkeeper. The main reason you should not solely rely on the software of your financial managers is that having easy access to your financial data can go a long way to planning for your business’s success. Project management software: If you work in an industry where multiple people are working on one project at the same time, you will have an extremely tough time keeping everything in order and on track if you simply rely on traditional electronic communication, such as email and instant messaging. With a Project Management program, you have an excellent overview of the tasks of individual players as well as the overall progress of a project you are working on. It also helps identify problem areas in your processes or bottlenecks in your business’s line of production. Not only will you be sorting out issues long before they become problematic, but you’ll also negate the need for unnecessary communication and check-ups that may hinder progress. Website and mail: The world is moving online and if your business has not moved online yet, it puts you at a great disadvantage compared to your competitors. Not only is it necessary to be online, but to be able to give your existing and potential clients easy access to all the questions that they have about your business. Domain registration and dedicated mailing addresses will add professionalism and visibility to your business. Leading technologies Fibre and 5G Making sure that your business is geared to handle high-volume internet data is becoming more and more important. As things stand, it seems DSL/ADSL technologies are on the way out while the fast speeds of 4G LTE feel slower by the day. In order to keep up with the data demands of your business, you should really start looking for alternative, newer internet technologies, such as 5G and Fibre technologies. By increasing your bandwidth, you’re decreasing the frustration of slow loading times and unstable real-time communication connections (which seems to be becoming a major player in the way businesses will communicate after the COVID-19 pandemic. Smart Offices While not a necessity, savvy business owners would do well to keep their eyes peeled on the development of smart technologies for the office space. Maximising productivity and performance in the workspace can be achieved by implementing interconnected smart devices/systems. Having an integrated smart office is already possible with devices such as the Google Assistant or Alexa and their compatible smart devices, although there are still some regional functionality limitations in South Africa. Remote desktops One of the most effective technologies that businesses have been using during the COVID-19 lockdown is remote desktops. Remote desktops allow you to use office computers from a remote location (such as your home). As more and more people return to work, it does not damage the merit in investing in remote desktop software as it allows those businesses functioning in always-on industries to utilise office equipment wherever they are. The Future
Find the right home, the first time
2020 has been an unpredictable year, to say the least. Each new week seems to hold its own uncertainties and concerns. In such times, it is important for tenants of residential property to know what their rights are in terms of premature cancellation of lease agreements that may be necessitated by COVID-19, the pursuant lockdown and general change of personal circumstances. As a point of departure, the tenant can consult the lease agreement to check if there are any provisions pertaining to early cancellation. If there is no such clause, or the terms of the clause are unacceptable, the tenant can turn to the provisions of the Consumer Protection Act 68 of 2008 (“the CPA”), if applicable. The CPA will be applicable to residential lease agreements, except in rare circumstances. Consult with your lawyer to determine the CPA’s applicability to your lease agreement. If the CPA is applicable to the lease agreement, the tenant would be able to lawfully cancel the lease agreement at any time, even if there is no cancellation clause in the agreement. Section 14(2)(b) of the CPA states that a tenant may cancel the lease agreement, despite any provision of the lease agreement to the contrary, by giving 20 business days’ notice in writing. There may however be financial consequences for the tenant as the landlord can impose a reasonable cancellation penalty on the tenant upon early cancellation. There are guidelines in Regulation 5 of the Act as to what a “reasonable cancellation penalty” entails. The cancellation penalty should not be exorbitant, and if the tenant feels that the landlord’s claim is excessive and unfair, they can approach the National Consumer Tribunal or the Rental Housing Tribunal. Tenants can also approach their lawyer, who can address the landlord and negotiate a reasonable cancellation penalty, considering the relevant facts of the matter. Upon expiry of a fixed-term lease agreement the lease agreement will automatically carry on a month-to-month basis, unless the tenant expressly agreed to the renewal of a further fixed-term or the tenant terminated the agreement upon the expiry date. In such a case, the provisions of the Rental Housing Act 50 of 199 are relevant. The landlord can cancel the lease agreement, in terms of the Act, by giving one calendar months’ notice. In Luanga v Perthpark Properties Ltd 2019 (3) SA 214 (WCC), the Western Cape High Court held that one month’s notice must be interpreted as a notice given before the end of the month, to terminate the contract at the end of the next month. There are therefore various considerations at play when a tenant considers premature cancellation of a lease agreement. To avoid unnecessary disputes and an exorbitant cancellation penalty, a tenant would benefit from consulting their attorney before giving notice of cancellation to their landlord. This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)
Cancelling a lease agreement during COVID-19
2020 has been an unpredictable year, to say the least. Each new week seems to hold its own uncertainties and concerns. In such times, it is important for tenants of residential property to know what their rights are in terms of premature cancellation of lease agreements that may be necessitated by COVID-19, the pursuant lockdown and general change of personal circumstances. As a point of departure, the tenant can consult the lease agreement to check if there are any provisions pertaining to early cancellation. If there is no such clause, or the terms of the clause are unacceptable, the tenant can turn to the provisions of the Consumer Protection Act 68 of 2008 (“the CPA”), if applicable. The CPA will be applicable to residential lease agreements, except in rare circumstances. Consult with your lawyer to determine the CPA’s applicability to your lease agreement. If the CPA is applicable to the lease agreement, the tenant would be able to lawfully cancel the lease agreement at any time, even if there is no cancellation clause in the agreement. Section 14(2)(b) of the CPA states that a tenant may cancel the lease agreement, despite any provision of the lease agreement to the contrary, by giving 20 business days’ notice in writing. There may however be financial consequences for the tenant as the landlord can impose a reasonable cancellation penalty on the tenant upon early cancellation. There are guidelines in Regulation 5 of the Act as to what a “reasonable cancellation penalty” entails. The cancellation penalty should not be exorbitant, and if the tenant feels that the landlord’s claim is excessive and unfair, they can approach the National Consumer Tribunal or the Rental Housing Tribunal. Tenants can also approach their lawyer, who can address the landlord and negotiate a reasonable cancellation penalty, considering the relevant facts of the matter. Upon expiry of a fixed-term lease agreement the lease agreement will automatically carry on a month-to-month basis, unless the tenant expressly agreed to the renewal of a further fixed-term or the tenant terminated the agreement upon the expiry date. In such a case, the provisions of the Rental Housing Act 50 of 199 are relevant. The landlord can cancel the lease agreement, in terms of the Act, by giving one calendar months’ notice. In Luanga v Perthpark Properties Ltd 2019 (3) SA 214 (WCC), the Western Cape High Court held that one month’s notice must be interpreted as a notice given before the end of the month, to terminate the contract at the end of the next month. There are therefore various considerations at play when a tenant considers premature cancellation of a lease agreement. To avoid unnecessary disputes and an exorbitant cancellation penalty, a tenant would benefit from consulting their attorney before giving notice of cancellation to their landlord. This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)
Moving regulations during the lockdown
We’ve all felt like it – the hairs on the back of your neck standing up, sure someone is keeping an eye on you, watching as you receive a DVD box set that was for some reason labelled “essential” on the online store, sneaking in at 09:20 after the morning jog you were sure was shorter yesterday, or absent-mindedly fixing your mask as you stand in the chocolate aisle at the supermarket. Feeling like you are crossing a line has become part of daily life and moving during the lockdown may have many people feeling just as guilty. But as with most regulations, things have changed (except for the mask part – it’s best to just ignore the tickle till you get to your car). Moving during Level 3 is allowed, and with the effects of the lockdown touching so many lives, a very possible occurrence as landlords and tenants alike seek their footing. The good news is that moving safely is entirely possible. The most important element is following adequate safety measurements throughout the process. Businesses operating under Level 3 are all required to have an adequate safety plan in place, with a COVID-19 Compliance Officer that oversees the company’s compliance with the necessary preventative measures. These requirements ensure that estate agents and transport companies keep every person involved in the move safe. These are the most important guidelines to follow when moving: Get the necessary permits from a SAPS office that will allow you to travel during the lockdown. Adhere to social distancing and keep a minimum of 1,5m between yourself and the transport team. Have sanitiser handy to offer to all parties before and after the move. Sanitise the surfaces of the old property once furniture has been removed; sanitise surfaces in the new property both before and after furniture has been moved in, as well as the furniture itself. Be kind with your words, not your actions, for the time being. These precautions are there for a reason. The real estate industry relies heavily on multi-channel interaction and is, consequently, at high risk. This has been seen in the Johannesburg and Pretoria deeds offices, which were forced to close temporarily on June 12 after conveyancers in the building were tested positive for the virus, and the Cape Town deeds office, which has already closed twice for the same reasons. While moving is allowed, tenants are still encouraged to move into a new safety bubble only if it is truly necessary. When moving is truly the only option, ensure that the necessary safety precautions are adhered to. This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)
What are your rights when it comes to forced COVID-19 testing?
As the COVID-19 pandemic is spreading across the globe, Minister of Health, Zweli Mkhize has expressed his concern that there is not enough testing being done in South Africa. By the 14th of April, 83,663 tests had been conducted in South Africa according to www.worldometers.info.During the early stages of this pandemic, it was far clearer which individuals should be tested – individuals who show symptoms who have travelled overseas. Now, it is far more difficult to determine which individuals to target and this could result in disastrous consequences if at-risk individuals and communities are overlooked. to establish which individuals to target when it comes to testing.As more tests will be conducted in the following weeks, you might be wondering if you can be forced by the government to undergo testing, even if you show no symptoms of the COVID-19 virus. In short, yes you can. As of late, to undergo forced testing of the COVID-19 virus is not considered to be in contravention of your constitutional rights as a South African citizen. During President Cyril Ramaphosa’s Nation Address on the 15th of March, he declared a national state of emergency in response to the COVID-19 pandemic. On the 23rd of March, President Ramaphosa announced the unimaginable by stating that South Africa will enter a nationwide lockdown from midnight on 26 March until midnight on 16 April. On the 9th of April, President Ramaphosa announced that the lockdown will be extended by another 2 weeks, until the end of April. After the declaration of the pandemic as a national state of disaster, the government issued regulations to be incorporated in the Disaster Management Act to flatten the curve and manage the spread of the virus. It comes as no surprise that these regulations limit several of our constitutional rights as South Africans e.g. right to privacy and right to freedom of movement during the lockdown period. It is important to note that section 36 of the Constitution states: “36. (1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including— (a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose.” (Constitution of the Republic of South Africa, 1996) The regulations included in the Disaster Management Act thus qualifies as a law of general application and can limit the rights of South Africans as stated in the Constitution. In conclusion, under the new regulations, individuals cannot refuse to be tested for COVID-19. If the individual tests positive, the individual can also not refuse treatment or quarantine as these measures are put in place to manage the spread of the virus. This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)
Impact of the coronavirus on contractual obligations
The novel coronavirus, also known as COVID-19, has caused major disruptions worldwide since its outbreak in December 2019 in Wuhan, China. The virus has also recently spread to South Africa and our government has reacted swiftly by introducing a state of emergency and promulgating certain regulations. Restrictions initially only limited the number of people who were allowed to be in attendance at social events. These restrictions were increased to a complete “lockdown” between 27 March 2020 and 16 April 2020. The above restrictions as imposed by the South African Government has certain severe consequences. One such instance is weddings were couples (or their parents) enter in a number of contractual agreements for services such as catering, décor and venue hire. Deposits are almost always payable for these services and there are often clauses according to which the deposit is forfeited in the event of the wedding being cancelled on short notice or penalties if the wedding is moved to a different date. The question thus arises: what happens when one must cancel or postpone a wedding due to the outbreak of a deadly virus and government’s restrictions following such an event which has the effect of prohibiting your wedding? The answer to the above question can be found in the law of contract. Contractual agreements can be varied or discharged by operation of law in cases where there is a supervening impossibility (also sometimes referred to as an act of God).[1] The general position in South African law is that if performance in terms of a contract becomes objectively impossible after the conclusion thereof due to an unforeseen and unavoidable event, then the obligation to perform in terms of the contract will be extinguished.[2] It is thus clear from the above that two requirements must be met before a contractual agreement will be terminated due to a supervening impossibility. Firstly, performance must be objectively impossible. This requirement is only met if no one can offer the required performance. It is not sufficient if only the specific party to the contract cannot offer the performance anymore.[3] Performance will also be deemed to be objectively impossible in circumstances where it is factually possible but has become unlawful due to new legislation.[4] This requirement is present in the current circumstances where performance, depending on the size of the wedding and type of venue, has become impossible due to legislation effectively prohibiting the event. The second requirement is that the impossibility must be unavoidable for the reasonable person. This means that the impossibility must not have been caused due to the fault of one of the contracting parties. It is often said that the impossibility must be the result of vis maior or casus fortuitus.[5]It is clear that this requirement is met in the current circumstances since the reasonable person would not have foreseen the outbreak of a virus on a global scale which has brought entire nations and economies to a halt. Such a reasonable person would also not have been able to foresee the promulgation of legislation restricting social movement and events. The result of a supervening impossibility as discussed above is that the contractual relationship comes to an end.[6] The termination of all contractual obligations creates new obligations to return whatever has been delivered in terms of the contract up until that point, such as, for example, a deposit which was paid to a wedding venue. This obligation to return can be enforced by way of an action for unjustified enrichment.[7] In conclusion, those who have paid deposits or even the whole sum owed in terms of a contract which cannot proceed anymore due to the coronavirus and subsequent legislative restrictions should be able to get refunded. However, this is subject to the contract in which the parties may have agreed to deal with a supervening impossibility differently. Members of the public are encouraged to consult an attorney to discuss their specific contract and circumstances. Reference List: D Hutchison & CJ Pretorius (eds) Kontraktereg in Suid-Afrika R H Christie The Law of Contract 2001 Kudu Granite Operations (Pty) Ltd v Caterna Ltd 2003 (5) SA 193 (SCA). Bayley v Harwood 1954 (3) SA 498 (A). [1] R H Christie The Law of Contract 2001 p 280. [2] D Hutchison & CJ Pretorius (eds) Kontraktereg in Suid-Afrika 2012 p 402. [3] 403. [4] 403. See also Bayley v Harwood 1954 (3) SA 498 (A). [5] D Hutchison & CJ Pretorius (eds) Kontraktereg in Suid-Afrika 2012 p 404. [6] 405. [7] Kudu Granite Operations (Pty) Ltd v Caterna Ltd 2003 (5) SA 193 (SCA) This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)