Knowing who’s in the lead when it comes to the property market is difficult. The traditional progression used to be: Finish your studies; find a job in which you’ll stay until retirement; get married; buy a starter home; start a family; work hard and finally retire. That tradition has faded away entirely.

The generational divide is nowhere more apparent than in the property market. But is the property market evolving as quickly as society? And is the change happening where it needs to?

Statistics show that the average age of home buyers is 44, smack dab in the middle of the Generation X age bracket, which is 38-53. But Gen Xers may have taken in a difficult niche in the real estate market. Currently, more focus is placed on the generations on both other ends, the Millennials (22-37) and Baby Boomers (54-72), trying to accommodate an older generation that is still thriving and looking for ways to enrich their lifestyles, while also trying to find ways to shape the market for the younger generations.

On one hand, Gen Xers are often as up to date with technology as Millennials, being comfortable with the digital evolution they’ve been a part of since their first antennaed mobile phones and orange-screened Dos computers. In The Dark Knight Rises, Bane says to Batman, “You merely adopted the dark; I was born in it, moulded by it.” With Generation Xers, it may be the fact that they had to adapt to the changing world and be moulded by it that gives them the head start in the real estate market. On the other hand, Gen Xers are more settled in their careers and focused on their families, bringing with them similar financial stability as Baby Boomers.

What makes the Gen X generation so uniquely placed in the economy, is that they incorporate the best of both worlds — being more financially stable, and looking for that stability in their real estate as well, just like the Boomers; but also being able to utilise the advantages of technology and be as connected with the world around them as the Millennials.

That said, Baby Boomers are still proving to play an increasingly active part in the shaping of the real estate industry as the norm of retirement accommodations and “old age homes” drastically fall out of vogue. Those nearing retirement no longer want to be locked up in a room that is barely bigger than a school boarder’s hostel room and have three meals and a corner-mounted television provided in the common room. Thanks to improved health, with regular exercise and a healthier diet, Baby Boomers are looking for ways to make the most of their lives after retirement, creating a demand in the real estate market that had been missing for a long time.

Millennials, while still the largest percentage of first-time home buyers, owning roughly 38% of the market, play a reasonably small part in property sales. But Millennials choosing to rent rather than buy may be out of their hands if one considers the inflation rate was 5.2% in 2018, and salary increases only averaging at 4.9% (resulting in a take-home increase of only about 0.4%, according to BankservAfrica’s Take-home pay Index). Many Millennials are only now entering their careers, and even when they have started a family, they do not have the same financial stability needed to properly invest in their families or become key players in the buying and selling market just yet.

It’s clear to see that shifting the focus accordingly in both the rental and selling spheres has become an essential part of keeping the real estate industry up with the times.

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)

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This new law is seen as a progressive move towards recognising biological fathers, same sex parents, transgender parents, adoptive parents and even surrogates. It further acknowledges the fact that the gap between one or two parents being employed in a household is getting narrower and narrower. The entitlement to parental leave also fosters family bonding between the parents and a child, which is of utmost importance.

This amendment to the Basic Employment Condition Act, 1997 is the insertion of clauses 25A, 25B and 25C, set out below:

Parental Leave

25A.

(1) An employee, who is a parent of a child, is entitled to at least ten consecutive days parental leave.

(2) An employee may commence parental leave on-

(a) the day that the employee’s child is born; or
(b) the date—

(i) that the adoption order is granted; or
(ii) that a child is placed in the care of a prospective adoptive parent by a competent court, pending the finalisation of a 30-day-adoption order in respect of that child, whichever date occurs first.

(3) An employee must notify an employer in writing, unless the employee is unable to do so, of the date on which the employee intends to—

(a) commence parental leave; and
(b) return to work after parental leave.

(4) Notification in terms of subsection (3) must be given—

(a) at least one month before the—

(i) employee’s child is expected to be born; or
(ii) date referred to in subsection 2(b); or

(b) if it is not reasonably practicable to do so, as soon as is reasonably practicable.

(5) The payment of commissioning parental benefits will be determined by the Minister, subject to the provisions of the Unemployment Insurance Act, 2001 (Act No. 63 of 2001).

Adoption Leave

25B.

(1) An employee, who is an adoptive parent of a child who is below the age of two, is subject to subsection (6), entitled to—

(a) adoption leave of at least ten weeks consecutively; or
(b) the parental leave referred to in section 25A.

(2) An employee may commence adoption leave on the date—

(a) that the adoption order is granted; or
(b) that a child is placed in the care of a prospective adoptive parent by a competent court, pending the finalisation of an adoption order in respect of that child, whichever date occurs first.

(3) An employee must notify an employer in writing, unless the employee is unable to do so, of the date on which the employee intends to—

(a) commence adoption leave; and
(b) return to work after adoption leave.

(4) Notification in terms of subsection (3) must be given—

(a) at least one month before the date referred to in subsection (2); or
(b) if it is not reasonably practicable to do so, as soon as is reasonably practicable.

(5) The payment of parental benefits will be determined by the Minister, subject to the provisions of the Unemployment Insurance Act, 2001 (Act No. 63 of 2001).

(6) If an adoption order is made in respect of two adoptive parents, one of the adoptive parents may apply for adoption leave and the other adoptive parent may apply for the parental leave referred to in section 25A: Provided that the selection of choice must be exercised at the option of the two adoptive parents.

(7) If a competent court orders that a child is placed in the care of two prospective adoptive parents, pending the finalisation of an adoption order in respect of that child, one of the prospective adoptive parents may apply for adoption leave and the other prospective adoptive parent may apply for the parental leave referred to in section 25A: Provided that the selection of choice must be exercised at the option of the two prospective adoptive parents.

Commissioning parental leave

25C.

(1) An employee, who is a commissioning parent in a surrogate motherhood agreement is, subject to subsection (6), entitled to—

(a) commissioning parental leave of at least ten weeks consecutively; or

(b) the parental leave referred to in section 25A.

(2) An employee may commence commissioning parental leave on the date a child is born as a result of a surrogate motherhood agreement.

(3) An employee must notify an employer in writing, unless the employee is unable to do so, of the date on which the employee intends to—

(a) commence commissioning parental leave; and
(b) return to work after commissioning parental leave.

(4) Notification in terms of subsection (3) must be given—

(a) at least one month before a child is expected to be born as a result of a surrogate motherhood agreement; or
(b) if it is not reasonably practicable to do so, as soon as is reasonably practicable.

(5)  The payment of commissioning parental benefits will be determined by the Minister, subject to the provisions of the Unemployment Insurance Act, 2001 (Act No. 63 of 2001).

(6)  If a surrogate motherhood agreement has two commissioning parents, one of the commissioning parents may apply for commissioning parental leave and the other commissioning parent may apply for the parental leave referred to in section 25A: Provided that the selection of choice must be exercised at the option of the two commissioning parents.

This landmark legislation does not apply to mothers who give birth as they are entitled to maternity leave, which is four months maternity leave, in terms of the Basic Conditions of Employment Act.

Maternity leave is paid out of the Unemployment Insurance Fund (UIF). Parental leave, adoption leave, and commissioning leave will also be paid out of UIF. Employees will be given a partial pay out of up to 66% of their salary from the UIF.

We recommend that employers amend the employment contracts to include this new law and further make their employees aware of their new rights.

Reference List:

• Basic Conditions of Employment Act 75 of 1997
• Unemployment Insurance Fund Act 63 of 2001
• Labour Law Amendment Act of 2018

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)

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Finding a holiday home isn’t as simple as choosing your favourite holiday spot and packing your bags – a decision like this demands time and careful consideration. Let it simmer. This is not a holiday – this is an investment.

Just like those of us who want to avoid over-crowded beaches and rush-hour-like traffic when travelling, you may want to wait for the off-season. Property prices, as well as both the buyer’s and seller’s expectations, may be affected by the holiday buzz.

Be sure to conduct the necessary research. Owning property in an area is different from simply visiting for a week or two during the holidays. Make sure you choose a location suitable for a home, not just a pit-stop. Consider the area’s liveability both in and out of season. Quite often holiday destinations become ghost towns when the holiday season ends. If that is exactly the peace and quiet you want, perfect! If it’s not, you may want to continue your search, because, contrary to their names, holiday homes can’t only be lived in during holidays.

Homes need constant maintenance and care. Staying close to your holiday home will allow you to break away for weekends, making sure the home receives the necessary attention. If your holiday home is a bit too far from your current residence, consider renting it out for the periods when you are not there. This will ensure your property is well-maintained as well as offering you an extra income. When choosing to rent out your property it becomes especially important to make sure the area provides the necessary amenities for everyday living.

The most important aspect, though, is enjoyment. A holiday home is meant to be enjoyed. Make sure you enjoy yours for the longest possible time by making an informed decision.

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)

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The Minister of Finance, Tito Mboweni, announced in South Africa’s 2020 Budget Speech “to support the property market, the threshold for transfer duties is adjusted”. This news will be welcomed by property sellers, and more particularly, those in the market to purchase property, as the Transfer Duty exemption has now been increased to R1 million. This means that property costing R1 million or less will not be subject to Transfer Duty.

Prior to 1 March 2020, this exemption threshold was R900 000.00.

Transfer Duty is a tax payable on any immovable property which is acquired by way of a transaction or otherwise, including sale, donation, cession or exchange of property.

Transfer Duty is payable at the following rates on transactions which are not subject to VAT:

2021 (1 March 2020 – 28 February 2021)

Calculate the Transfer Duty, Transfer Fees and other amounts payable when purchasing a property by using our free Bond Calculator on our website: https://www.schnetlers.bondcalculatoronline.co.za/.

Contact our offices for any queries on Transfer Duty amounts or Transfer Fees when purchasing an immovable property.

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)

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Views, sunlight, natural flow of air, privacy

Conclusion:

• [1] AJ van der Walt, The Law of Neighbours, 1^st edition, (2010), p. 341-343
• [2] Van der Walt, The Law of Neighbours, p. 356
• [3] 7488/04 (2006) ZAWCHC 56 (28 November 2006)
• [4] Van der Walt, The Law of Neighbours, p. 372

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]]> https://schnetlers.co.za/2019/10/14/my-neighbours-are-renovating-their-house-without-complying-with-building-regulations-what-are-my-options/feed/ 0 https://schnetlers.co.za/2019/10/14/antenuptial-contracts-can-i-get-one-after-marriage/ https://schnetlers.co.za/2019/10/14/antenuptial-contracts-can-i-get-one-after-marriage/#respond Mon, 14 Oct 2019 09:26:13 +0000 https://schnetlers.co.za/?p=1807 Couples who are interested in an antenuptial contract often make the decision to get one before they are married. That is the ideal scenario. However, some […]

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]]> Couples who are interested in an antenuptial contract often make the decision to get one before they are married. That is the ideal scenario. However, some couples may have already gotten marriedin community of property, and later decide to change to another form of marriage contract.

Can it be done?

The Matrimonial Property Act allows a husband and wife to apply jointly to court for leave to change the matrimonial property system which applies to their marriage.


• According to South African law, the parties who wish to become married out of community of property must enter into an antenuptial contract prior to the marriage ceremony being concluded.  
• If they fail to do so then they are automatically married in community of property. Of course, many people are unaware of this provision and should be able to satisfy the court that it should change their matrimonial property system if it was their express intention that they intended to be married out of community of property.
What are the requirements?

In order for the parties to change their matrimonial property system, the act mentions the following requirements:


• There must be sound reasons for the proposed change.
• The Act requires that notice of the parties’ intention to change their matrimonial property regime must be given to the Registrar of Deeds, must be published in the Government Gazette and two local newspapers at least two weeks prior to the date on which the application will be heard and must be given by certified post to all the known creditors of the spouses.
• The court must be satisfied that no other person will be prejudiced by the proposed change. The court must be satisfied that the rights of creditors of the parties must be preserved in the proposed contract so the application must contain sufficient information about the parties’ assets and liabilities to enable the court to ascertain whether or not there are sound reasons for the proposed change and whether or not any particular person will be prejudiced by the change.
What is the downside?

The downside is that the application is expensive because you and your spouse have to apply to the High Court on notice to the Registrar of Deeds and all known creditors, to be granted leave to sign a Notarial Contract having the effect of a postnuptial contract. You must also have solid grounds for wanting to switch to an antenuptial contract. Therefore, it’s not something you can do on a whim.

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)

References:


• The Matrimonial Property Act 88 OF 1984

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]]> https://schnetlers.co.za/2019/10/14/antenuptial-contracts-can-i-get-one-after-marriage/feed/ 0 https://schnetlers.co.za/2019/10/14/what-is-voluntary-sequestration/ https://schnetlers.co.za/2019/10/14/what-is-voluntary-sequestration/#respond Mon, 14 Oct 2019 09:15:31 +0000 https://schnetlers.co.za/?p=1804 The term “insolvency” relates to both sequestration (for individuals and trusts) and liquidation (for companies and close corporations). Sequestration can either be effected by voluntary sequestration […]

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]]> The term “insolvency” relates to both sequestration (for individuals and trusts) and liquidation (for companies and close corporations). Sequestration can either be effected by voluntary sequestration or compulsory sequestration. This article will deal with voluntary sequestration, where the person applying to the Court for sequestration is the insolvent individual himself/herself.

What does “insolvent” mean?

If someone is insolvent (bankrupt), the amount of her debts is more than the value of their assets and income, and she is unable to pay her creditors (a creditor is a person or business she owes money to).

How does voluntary sequestration work?

When a person becomes insolvent, she can apply to the Court for her estate to be sequestrated. There are, however, three requirements that she will have to meet before the Court will allow her estate to be sequestrated:


1. She must prove that her debts are actually more than the value of her assets.
2. She must have enough assets to pay the costs of the sequestration application.
3. She must prove that the sequestration will benefit the persons and/or businesses she owes money to i.e. they must get paid (at least something) if her estate is sequestrated.
If the Court grants permission for sequestration, it will appoint a trustee/curator by court order who must manage the insolvent estate to the equal benefit of all the creditors.

The trustee/curator will sell her assets and use the money to pay her creditors. If the money from the sale of her assets is not enough to pay all creditors in full, the money will be divided pro rata between the creditors based on the amount owed to each creditor and the order of preference of payment. Any outstanding debt that remains thereafter will be written off by the creditors.

What happens when the voluntary sequestration process has been completed?

The insolvent person can start over with no debt to his name. This makes it sound as if a person can make debt, then apply for voluntary sequestration and walk away without paying his creditors. However, being sequestrated does have disadvantages.

What are the disadvantages of voluntary sequestration?

The following disadvantages should be considered before applying for a voluntary sequestration:


1. The sequestrated person’s credit record will get a blow as he/she will be blacklisted at credit bureaus and lose their creditworthy status.
2. The sequestrated person can’t borrow money or incur any other debt until he/she is rehabilitated. The sequestrated person will qualify as being rehabilitated when declared as such by the Court, which can happen four years after the sequestration date or sometimes sooner. If the Court does not declare the sequestrated person rehabilitated, he/she will automatically become rehabilitated ten years after his/her sequestration date.
3. If a person’s estate is sequestrated, it may lead to prohibition of membership of certain professional bodies until he/she is rehabilitated, or even future exclusion from certain professions.
Who may apply for voluntary sequestration?


1. In the case of a natural person becoming insolvent, the person himself/herself may apply, or his/her representative.
2. Where spouses are married in community of property, both spouses must apply for voluntary sequestration at the same time.
3. The partners in a partnership who are resident in South Africa or their representative may apply for voluntary sequestration.
4. When a deceased estate is insolvent, the executor of the estate may lodge an application for voluntary sequestration.
5. The curator (curator bonis) of an estate where the individual is unable to handle his/her own affairs e.g. if the individual is mentally unfit.
6. An insolvent trust.
Voluntary sequestration is not the panacea it appears to be at the surface. Although it might be a solution for the financial problems of an insolvent person, there is a price to pay in terms of losing a creditworthy status and/or a profession together with a good reputation which might have taken years to build up.

The decision to apply for voluntary sequestration should not be taken lightly and should only be used as a last resort after all other possible avenues have been exhausted. If you need more information on insolvency and voluntary sequestration, please contact your legal advisor.

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)

References:

• http://www.debtbusters.co.za
• http://www.findanattorney.co.za
• http://voluntarysequestrationprocess.co.za
• http://www.conlonlaw.co.za
• http://dlbmattorneys.co.za

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]]> https://schnetlers.co.za/2019/10/14/what-is-voluntary-sequestration/feed/ 0 https://schnetlers.co.za/2019/09/25/can-you-deregister-or-terminate-a-trust/ https://schnetlers.co.za/2019/09/25/can-you-deregister-or-terminate-a-trust/#respond Wed, 25 Sep 2019 09:58:21 +0000 https://schnetlers.co.za/?p=1802 There is no provision in the Trust Property Control Act, 1988 that requires the deregistration of trusts. However, this said, it does not mean that a […]

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]]> There is no provision in the Trust Property Control Act, 1988 that requires the deregistration of trusts.

However, this said, it does not mean that a trust can never be terminated, as there are a few events that can occur during the lifetime of the founder, the trustees or the beneficiaries.

When considering the termination of the trust, the first step will always be to turn to the provisions of the trust deed.

Some of the most common provisions are:

• that the trust assets have been distributed to the beneficiaries;
• it may terminate after a certain period of time or upon the happening of a specific event;
• the discretion of the trustees or through a resolution passed by the beneficiaries;
• once its primary objective has been achieved; and
• when it becomes impossible to achieve its main objective.

For the termination of a trust, the following documents are required:

• resolution by the trustees confirming that the trust was active or dormant and that the bank account in the name of the trust has been closed;
• The original letter of authority;
• Bank statements reflecting a nil balance or the final statement;
• Proof that the beneficiaries have received their benefits; and
• An affidavit by the trustees confirming that the trust has been divested of all its assets.

Upon receipt of the above documents, the Master will deregister the trust. Please note that the above documents must be lodged with the Master with whom the Trust has been registered.

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)

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]]> https://schnetlers.co.za/2019/09/25/can-you-deregister-or-terminate-a-trust/feed/ 0 https://schnetlers.co.za/2019/09/25/what-is-a-title-deed-3/ https://schnetlers.co.za/2019/09/25/what-is-a-title-deed-3/#respond Wed, 25 Sep 2019 09:54:39 +0000 https://schnetlers.co.za/?p=1800 If you are planning to buy a new property, you will need to get the title deed transferred into your name to prove that you are […]

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]]> If you are planning to buy a new property, you will need to get the title deed transferred into your name to prove that you are the owner of the property. You will need the assistance of a lawyer specialising in property transfers (also known as a conveyancer) to help you transfer the title deed into your name.

You will only become the owner of the property when the Registrar of Deeds signs the transfer. After it has been signed, a copy of the title deed is kept at the Deeds Office closest to you.

A Title Deed is documentary proof of ownership in terms of the Deeds Registries Act 47 of 1937. Each property has its own separate Title Deed. It is an important document containing all the details pertaining to a particular property.

These details are:

• The name of the existing owner as well as the previous owners.
• A detailed property description which includes size.
• The purchase price of the property paid by the existing owner.
• Conditions applicable to the zoning, use and sale of the land.
• All real rights registered in respect of the property.

The owner will normally have the Title Deed or a copy thereof in his possession. Before signing an offer to purchase carefully scrutinize the Title Deed.

What is The Deeds Office and The Deeds Registry?

There are numerous Deeds Offices throughout South Africa. Each Deeds Office holds a Deeds Registry, containing filed Title Deeds of all the properties in its particular jurisdiction. All the Deeds Registries are linked to a computer network. Your estate agent can, via a computer-linked facility from his office, examine any Title Deed (registered from 1980) in the country’s combined Deeds Registry.

What’s the Difference Between a Property Deed and a Title?           

Title is the legal way of saying you own a right to something. For real estate purposes, title refers to ownership of the property, meaning that you have the rights to use that property. It may be a partial interest in the property or it may be the full. However, because you have title, you can access the land and potentially modify it as you see fit. Title also means that you can transfer that interest or portion that you own to others. However, you can never legally transfer more than you own. Deeds, on the other hand, are actually the legal documents that transfer title from one person to another. Sometimes the Deed is referred to as the vehicle of the property interest transfer.

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)

References                           

https://www.westerncape.gov.za/service/title-deeds-proof-property-ownership                  https://www.rocketlawyer.com/article/whats-the-difference-between-a-roperty-deed-and-a-title-ps.rl  http://www.conveyancing24.co.za/

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