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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The commercial world is currently moving to greater levels of digitisation. Organisations are implementing automated and electronic solutions in an effort to improve efficiency and better the environmental footprint at the same time. The move to digitisation and electronic signatures prompted questions surrounding the legality of these documents. This article aims to highlight certain legal aspects of electronic signatures in both a general business environment and an audit industry environment.

Different types of electronic signatures

The Electronic Communications and Transactions Act, 25 of 2002 (ECTA) differentiates between standard electronic signatures and advanced electronic signatures. Standard electronic signatures include digital or scanned signatures. An example would be using an iPad to sign a document or merely printing, signing and scanning the document. Advanced electronic signatures are defined as electronic signatures which results from a process which has been accredited by the Authority as stipulated in Section 37 in the ECTA, for example, Quicklysign.

Standard electronic signatures are sufficient in most instances if and when the method of signing had not been agreed upon by the parties beforehand. Advanced electronic signatures are required for a suretyship agreement as well as signing as a Commissioner of Oaths (Section 18 of ECTA). Some documents are specifically excluded from being signed electronically (as per Schedule 2 of ECTA) for example:

• an agreement for alienation of immovable property;
• an agreement for the long-term lease of immovable property in excess of 20 years;
• the execution, retention and presentation of a will; and
• the execution of a bill of exchange as defined in the Bills of Exchange Act, 34 of 1964.

Electronic signature of financial statements

Stakeholders in the audit industry will be all too familiar with the challenges being posed by printing various sets of financial statements, only to be scanned again after signature. The industry seems to be one of those that will benefit from the efficiencies provided by electronic signatures but are these electronic signatures on a director’s and auditor’s report acceptable?

The Independent Regulatory Board of Auditors (IRBA) identified the increase in usage of electronic signatures on financial statements and audit reports and reported on the matter through the 2017 public inspections report. IRBA communicated that the following challenges are experienced by the practice of electronic signatures:

• uncertainty as to the identification of the final version of the auditor’s report and annual financial statements;
• uncertainty as to the approval by the company’s board of the exact final version of the annual financial statements; and
• the risk that the incorrect annual financial statements are published.

We are of the opinion that an advanced electronic signature service provider, as approved by the ECTA, will sufficiently mitigate the above-mentioned challenges identified by IRBA.

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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I gave instructions to my attorney to prepare a last will and testament for me as my will no longer reflected my wishes. At my request, my attorney emailed the will to me with clear instructions as to how I should go about signing it. I asked my neighbours to act and sign as witnesses. My neighbours signed the will on all the pages and left before I signed. I then signed the will on all the pages. I am now worried about the validity of my will as the email from my attorney states that I have to sign the will in the presence of two witnesses. Is my will valid?

The formalities for the valid execution of a will are set out in the Wills Act. Section 2 of the Wills Act, Act 7 of 1953, reads: “No will executed… shall be valid unless the will is signed at the end thereof by the testator… and such signature is made by the testator… in the presence of two or more competent witnesses present at the same time and such witnesses attest and sign the will in the presence of the testator and of each other…”. Therefore, in order for a will to be valid, it has to be signed in the presence of two independent witnesses, both witnesses being present when the will is signed by the testator. The two witnesses signed your will in the presence of each other, but not in your presence.

A similar set of facts presented itself in a court case recently heard by the Gauteng Local Division of the High Court. In this matter, the two daughters of the deceased, who lost out on their inheritance in terms of the will of their father, claimed that it was never their father’s intention for his much younger lover to inherit his total estate. The testator was 85 years old at the time of his death and he had been living with a woman 38 years his junior for 8 years.

The deceased executed two wills during his lifetime. One on 6 November 2011 (“the 2011 will”) and another on 7 January 2014 (“the 2014 will”). The 2014 will was signed shortly before his death leaving the bulk of his estate to his much younger lover. The daughters of the deceased claimed the 2014 will was invalid as there were “suspicious” circumstances. They claimed their father either did not sign the 2014 will himself or, if he did, that he lacked the mental capacity to execute a valid will by reason of dementia. The daughters of the deceased were not successful in proving that the deceased’s signature was a forgery despite the fact that three handwriting experts testified.

Another witness called to testify was a witness to the 2014 will. Her testimony focused on the circumstances surrounding the signing of the 2014 will. She signed the will as a witness. She testified that she and her husband met the deceased in the street. As they were acquainted they naturally engaged in social conversation. She and her husband were informed that the deceased was on his way to the police station to sign a will. She and her husband were asked if they would accompany the deceased in order to sign the will as witnesses. They were assured that the process would not take long so they agreed to assist.

She and her husband signed the will and immediately left. They were the first to sign the will. At the time they signed the will the deceased had not signed the will. They left before witnessing the deceased signing the will. Hence, the 2014 will was not signed by the deceased in their presence even though it reflects their respective signatures as witnesses.

The evidence assessed collectively established that the deceased signed the 2011 will and also that he signed the 2014 will. However, the 2014 will was signed by the deceased after the two witnesses to the will had already left and therefore was signed in their absence.

The court referred to Section 2 of the Wills Act in terms whereof no will is valid unless the signature made by the testator is made “in the presence of two or more competent witnesses present at the same time”. The court confirmed that this requirement is mandatory and, if not met, the will is not valid for want of compliance with a statutorily required formality.

The court therefore found the 2014 will to be invalid and, as there was no evidence that there was any irregularity in the execution of the 2011 will, the 2011 will was declared the will of the deceased.

This judgement of the High Court once again emphasizes the importance of complying with the Wills Act. Your will is invalid, and it is advisable for you to print the will again and to sign it in the presence of two competent witnesses or, even better, for you to make an appointment with your attorney in order to sign the will at his office. 

Reference List:

• Twine and Another v Naidoo and Another [2017] ZAGPJHC 288; [2018] 1 All SA 297 (GJ)
• Wills Act, Act 7 of 1953

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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• You have not acknowledged the debt in the past three consecutive years, either in writing or verbally.
• You have not made a payment or promised to make a payment toward the outstanding debt.
• You have not been summoned to make a payment by a creditor for the debt within the past three consecutive years. 

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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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