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Securing your rental deposit

  Residential properties : Securing your security deposit Section 5 of the Rental Housing Act (RHA) allows a landlord to take a deposit from a tenant before the tenant moves into the property. This amount must be stipulated in the lease agreement and is generally an amount that is equal to 1 month rental. The […]

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Securing your rental deposit

Residential properties : Securing your security deposit

Section 5 of the Rental Housing Act (RHA) allows a landlord to take a deposit from a tenant before the tenant moves into the property. This amount must be stipulated in the lease agreement and is generally an amount that is equal to 1 month rental.

The RHA, requires that the landlord deposits the money into an interest bearing account, with a financial institution. A tenant has the right to receive a statement of interest earned. The tenant is therefore entitled to receive their deposit and all interest earned during the lease period at completion of the lease.  The tenant will have to provide FICA information for the landlord to invest the deposit amount.

As further protection, a tenant should ensure the landlord or managing agent is registered with the Estate Agency Affairs Board.

A landlord is entitled to deduct any expenses incurred from repairing any damage which may have occurred during the term of the lease from the deposit and interest.  This is normally provided for in the written lease agreement.

The tenant has the right to see all repair receipts to ensure the expenses are for genuine repairs that have been undertaken by the landlord. This does NOT include costs for general maintenance of the property which is for the landlord’s expense.

The Importance of a walkthrough inspection

A tenant should always do a pre lease inspection, noting any defects or faults prior to moving in and this should be reduced to writing and sent to the landlord or his agent as soon as possible, or within the time stipulated in the lease. A good idea would be to take photos as this would substantiate any claims of faults and will supplement any “snag lists’.

Some landlords often agree to fix faults at a later stage and this should be viewed with some suspicion as often the faults are not fixed and the landlords then blame the tenants for any damage. A tenant is not responsible for wear and tear and should not be forced to repaint the walls (unless the tenant has caused excessive wear and tear).

Exit inspection

A tenant must always insist on having an exit inspection and this should be done when the lease comes to an end. The tenant should ensure that the original snag list is presented and any additional evidence (photographic or otherwise) as well as any additional faults that have occurred during the lease period. A tenant who is intent on getting their full deposit and interest should view this inspection with a critical eye (by ensuring the property is cleaned, the walls washed and any holes patched up).

Rental Housing Act, Amendments

This Act sets out the following criteria for both the landlord and tenant:

  • Setting out the rights and obligations of the parties in a coherent manner;
  • Requiring the lease to be in writing;
  • The contents of a lease must include the following;
    • Names and addresses of all the parties to the agreement;
    • A description of the property;
    • The amount of the rental;
    • Reasonable escalation;
    • Frequency of payment;
    • The amount of the deposit;
    • The lease period and the notice period.

Failure to repay the security deposit and interest, for no legitimate reason, by the landlord is a criminal offence in terms of Section S 16 (aB) (RHA) and is punishable with a penalty or imprisonment not exceeding two years or both.

To ensure your lease agreement is complaint with all the necessary rights and obligations of both the landlord and tenant, contact us on 031 – 003 0630 or charmaine@schwenninc.co.za. #rentals #durbanlawyer #schwennlegacy #leaseagreements #newblogpost

Article written by – Barry Todd

 

What to keep in mind when buying a property

Our latest blog explains what should, both the buyer and seller take into account before buying or selling a property. Our blog explains various terms in a contract of sale and who is responsible for the various costs involved, these include agents commission and legal fees.

WHAT REQUIREMENTS SHOULD A PURCHASER TAKE INTO CONSIDERATION BEFORE BUYING A PROPERTY?

  1. The buyer must contact their bank to find out whether or not they qualify for a home loan and if so, what amount they quality for.
  2. The buyer should make sure that they can afford the monthly loan repayments and other costs like, rates and taxes, water and electricity, insurance premiums etc. The buyer should also ensure that if the interest rate is increased they are able to afford those increases.
  3. The buyer must find out about any once off costs, for example, legal costs, transfer duty or value added tax, loan administration, initiation and registration fees. Please click here to see the current tariff fees- https://www.schwenninc.co.za
  4. The buyer should also consider their future needs, for example, whether the property that they intend to buy is close to their work or to shopping centers, schools and hospitals as this could determine the future selling price or value of one of their biggest asset purchases.
  5. The buyer should examine the property they intend to buy thoroughly for any defects or potential defects, for example, cracks in the walls, damage to the roof, faulty plumbing and so on. The defects may be taken into consideration when negotiating the purchase price of the property. Our advice would be to consider the use of  company that would be able to assess the property and advise of any potential defects.
  6. The buyer should request from the person selling the property (seller) to provide them with the following documents: copies of the title deed and diagram; any existing lease agreements; approved building plans; any other relevant information (such as zoning, town planning or municipal requirements).These documents can be used or taken into consideration when negotiating the purchase price of the property.
  7. After examining the property and perusing the documentation, the buyer should decide whether or not they are interested in buying the property. If the buyer is interested in buying the sellers property, they will need to make an offer to the seller or through the appointed estate agent.
  8. When the terms and conditions of an offer to purchase are being negotiated, the buyer will be asked for the date that they intend to move into the property. If no date is set, the seller has the right to remain in the property until the property has been registered into the buyers name and the seller has received the agreed purchase price.
  9. After the buyer and seller have reached an agreement on the terms and conditions  of the sale, the offer to purchase must be reduced to writing in terms of the Alienation of Land Act and signed by both the buyer and seller.
  10. Any change to the sale agreement must be done in writing and signed by both the buyer and the seller. This is by way of an addendum.

WHAT REQUIREMENTS SHOULD A SELLER TAKE INTO ACCOUNT BEFORE LISTING OR SELLING THEIR PROPERTY?

 

  1. A seller can sell their property privately or through a registered estate agent.
  2. The seller may appoint one or more registered estate agents to list their property. The estate agent must be registered by the Estate Agency Affairs Board and hold a fidelity fund certificate.
  3. The estate agent and the seller will enter into a agreement which is called a mandate, in terms of which the estate agent will be entitled to receive a commission for selling the sellers property. The estate agent must explain the terms and conditions of the mandate to the seller.
  4. When the sellers property is on show, the property should be kept neat and clean so that it is attractive to potential buyers on the day of the showing.
  5. Estate agencies have their own standard sale agreements that can be used for the purpose of buying or selling of a property.
  6. If the seller decides to sell their private property, they should rather approach an attorney or US to draw up a sale agreement.
  7. The seller is obligated to inform the buyer of all defects or potential defects relating to the property, even if they are selling the property voetstoots.
  8. Upon receipt of the buyers written offer to purchase the property, the seller must read through the offer carefully, cross-out anything that they don’t agree with, cross-out any open spaces on the offer where they have crossed-out or added something and return the offer back to the buyer for their consideration.
  9. If there was nothing to be crossed-out or added, the seller may accept or reject the buyers offer.

 

WHAT TERMS AND CONDITIONS MUST APPEAR IN A SALE AGREEMENT?

  1. The terms and conditions that the seller and the buyer MUST agree on are: a) Identity of the seller and the buyer: by including their full names, identity numbers, addresses and marital statuses. b)description of the property being sold by the seller: by including the deeds offices description, size, and/or street address of the property being sold. c)Purchase price of the property payable by the buyer: by including how the property is going to be paid by the buyer, for example, in obtaining a loan, and whether or not a deposit is payable. If a deposit is payable, the  must be held in an interest bearing trust account by the conveyancers purchase price is R250 000.00 or less a cooling off period of five working days will apply.
  2. The term that the seller and the buyer MAY also agree on are for example: a) The details of the conveyance, usually the seller has the right to choose, b) Who will be responsible for which costs relating to eg cancellation costs, c) the date of  the buyer will take, d) voetstoots meaning it  is sold “as is”,  Which estate agents will be involved in sale and who pays the commission, f)the seller must provide the buyer with electrical compliance certificates and gas certificates, g) are any suspensive conditions buyer will have to get a loan in a certain period of time, h)what remedies there are if one party was to conditions.

For any information regarding the buying or selling of a property kindly contact us on 031 003 0630 or email Charmaine@schwenninc.co.za.

WRITTEN BY : BARRY TODD

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What is FICA and why do we need it??

WHAT IS FICA and WHY WE NEED IT?

 

FICA stands for The Financial Intelligence Centre Act, which came into effect on 1 July 2003.

 

FICA was introduced to fight financial crime, such as money laundering, tax evasion, and terrorist financing activities. FICA brings South Africa in line with similar legislation in other countries.

 

FICA is essentially a means to ensure that an institution is required to ”get to know the client”. Financial institutions, like banks or other organizations such as attorneys firms or estate agencies do this by keeping proper records of their clients, requesting particulars and keeping a proper record of where the funds are coming from and where they are going.

 

It is therefore a legal requirement for financial institutions to FICA their clients in order to prevent financial crimes. The Act, places an obligation on the banks/attorneys firms to FICA their clients and it is a criminal offence for them not to do so.

 

The failure to FICA clients can lead to a prision sentence (ranging from 5 to 15 years) and or a fine (ranging from R 1 000 000 to R 10 000 000) depending on the offence, hence the

 

Some offences that are punishable under the Act, include, but not limited to;

 

  • Failure to identify persons involved in a contractual obligation
  • Destroying or tampering with records
  • Failure to advice Centre of a suspicious client/person
  • Failure to report cash transactions
  • Failure to report suspicious or unusual transactionsWe have therefore drafted a list of requirements that should be given or requested to your friendly attorney firm (that would be us) or other institution.For individual:
  1. Copy of client’s ID book;
  2. Utility bill – no older than 3 months and showing clearly the clients’ physical address;
  3. SARS document where clients’ SARS registration number is clearly visible.

 

For Companies and CC’s

 

  1. the registered address of the close corporation or company;
  2. the name under which the close corporation or company conducts business;
  3. the address from which the close corporation or company operates, or if it operates from multiple addresses –
    • the address of the office seeking to establish a business relationship; and
    • the address of its head office;
    • the full names, date of birth and identity number or nationality (as may be applicable), concerning –
    • the manager of the company; and
    • each natural person who purports to be authorised to establish a business relationship or to enter into a transaction with the accountable institution on behalf of the company; and
    • the full names, date of birth, identity or registration number, nationality, address and / or legal form, as may be applicable, concerning the natural or legal person, partnership or trust holding 25%  or more of the voting rights in the company.

 

Documents required for companies

  1. identity document; or if a person cannot produce an identity document, another document bearing a photograph of the person and their names, date of birth and identity number;
  2. a document issued by the South African Revenue Services bearing the person’s name and the relevant number;
  3. a utility bill (no older than 3 months) or copy thereof;
  4. Certificate of Incorporation (form CM1) and Notice of Registered Office and Postal Address (form CM22) – Companies.

Documents required for Closed Corporations

  1. identity document; or if a person cannot produce an identity document, another document bearing a photograph of the person and their names, date of birth and identity number;
  2. a document issued by the South African Revenue Services bearing the person’s name and the relevant number;
  3. a utility bill (no older than 3 months) or copy thereof;
  4. Founding Statement and Certificate of Incorporation (form CK1) and Amended Founding Statement (form CK2) if applicable – Close Corporations.

For Partnerships:

  1. the name of the partnership,
  2. the names, date of birth, identity or registration number, nationality, addresses and / or legal form, as may be applicable, concerning, every partner, including every member of a partnership the person who exercises executive control over the partnership;
  3. each natural person who purports to be authorised to establish a business relationship or to enter into a transaction with the accountable institution on behalf of the partnership.

Documents required for Partnerships

  1. identity document for all partners; or if a person cannot produce an identity document, another document bearing a photograph of the person and their names, date of birth and identity number;
  2. a document issued by the South African Revenue Services bearing the person’s name and the relevant number;
  3. a utility bill (no older than 3 months) or copy thereof;
  4. Partnership agreement.

For all your contract/property needs, contact our offices on 031 003 0630 or charmaine@schwenninc.co.za

ESTATE AGENTS BEWARE! PROPERTY PRACTITIONERS BILL IS COMING

 

 

ESTATE AGENTS BEWARE! PROPERTY PRACTITIONERS BILL IS COMING.

Estate Agents need to be aware that on 31 March 2017, the Human Settlement committee gazetted for comment the Property Practitioners Bill which is set to replace the Estate Agency Affairs Act. The Bill is getting some momentum and there seems to be no doubt that it will be passed into law. What the Bill aims to do is to transform the property market and provide good regulatory mechanisms.

One of the big changes the Bill has presented is the definition of a property practitioner. The Bill has used the expanded term property practitioner to cover the wide range of people involved in the property business. The Bill includes estate agents, bond brokers, property valuators, home inspectors, property managers and developers in its definition of a property practitioner. The Bill will therefore apply to all the property practitioners as defined in it.

The Bill introduces as one of its new features a new regulatory body which will be replacing the Estate Agency Affairs Board established by the current Act. The Bill refers to this body as Property Practitioners Regulatory Authority and it will regulate the conduct of all property practitioners. The Bill further establishes a Property Practitioners Ombuds Office which will consider and provide resolution mechanisms to complaints brought forward by the public against property practitioners.

One of the major concerns with regard to the Bill is the extended powers of inspectors. The Authority are given the powers to appoint inspectors who will go around and determine whether the practitioner has complied with the rules. It appears that the Bill confers on inspectors the power to enter the premises of the property practitioner who has not complied with the Act and to seize and retain or seize documents without a warrant.

Property practitioners are still required to hold and have a valid Fidelity Fund Certificate before they can earn commission for their estate agency services. The Bill goes on further to state that commission earned by a property practitioner who is without a valid Fidelity Fund Certificate must be refunded, on demand, to the payer thereof.

In terms of disqualification from obtaining a Fidelity Fund Certificate, the Bill has basically retained all the requirements of the current Act and added a few like requirements having a valid BEE certificate and a tax clearance certificate.

In terms of the Bill, property practitioners are required to keep records and any other important documents for a period of 10 years. Further to that, a seller would need to furnish the property practitioner with a mandatory discloser form before the property practitioner may take a mandate.

The Bill goes on to list further requirements in respect of the property practice and it is quite important for every property practitioner to know them so as to avoid getting on the wrong side of the law. There are some exemptions that have been introduced which you will need to consult an attorney in respect of and to find out if they apply to you.

 

For more information, contact Charmaine Schwenn

charmaine@schwenninc.co.za

www.schwenninc.co.za

031-0030630 / 083 789 7638