Many Title Deeds contain restrictive conditions or personal servitudes (such as usufructs or pre-emptive rights) which have already lapsed. The Deeds Office insists that such lapsed conditions be removed from the Title Deed when the property is dealt with in any way, even when you register a further bond over the property.

Be aware of this added requirement and ask your conveyancer to check your Title Deed for any of these conditions to avoid hold-ups when your transaction is lodged in the Deeds Office.

In a more recent case it was held that the absence of any statutory approval for buildings constitutes a latent defect.  The voetstoots clause ordinarily covers a latent defect, meaning that a seller would be protected by the voetstoots clause for unapproved building plans.

It is important for buyers to take note that the smallest failure on their part to properly inspect the property and to ask the correct questions might cost them dearly in the future.

The buyer can only avoid the abovementioned consequence of the voetstoots clause if they can prove that the seller:

• knew of the latent defect;
• omitted to disclose and deliberately concealed such fact; and
• had the intention to defraud (the buyer).

It is thus of the utmost importance for all sellers to properly disclose all known defects, whether latent or patent, to the buyer and/or agent.

Even as a non-resident, you are obligated to declare the Capital Gain or Capital Loss when selling immovable property in South Africa. Where the seller of immovable property is a non-resident and the gross sales price exceeds R2 million, the purchaser has an obligation to withhold 5% of the purchase price from the seller (if a natural person)*, and pay such withheld portion to SARS as provisional Capital Gains Tax. The seller is however entitled to apply to SARS for a directive for no withholding or a reduced withholding tax.

* If the seller is an entity, a different rate applies.

The deeds office notes a caveat against a property as a reminder to itself and interested parties that some other action is required when next the property is dealt with in any way.For example, sometimes a property is re-surveyed and the property details may change as a result. The Surveyor General will then note a caveat against the property so that when next the property is dealt with, the amended details are noted in the title deed and deeds office database.Should the Title Deed thereafter be found, it must immediately be handed to the Registrar of Deeds.

A landlord has a tacit hypothec over a tenant’s movable property, should the tenant fail to pay any rental that is due. However, the hypothec is only enforceable if the landlord has a court order to this effect!

Thus, prior to obtaining a court order, the tenant may remove his goods from the premises himself and the hypothec will fall away.

Section 32 of the Magistrate’s Court Act is a useful tool in such circumstances as it allows the landlord to obtain an urgent order perfecting the hypothec and authorising the sheriff to attach and remove the goods for safe-keeping, pending the finalisation of any action for the outstanding rental.

Where a property is subject to a condition which stipulates that it may not be sold, alienated or transferred without the consent of the Home Owners Association of which the owner of the property is a member, the Deeds Office will not register the transfer without the said consent being lodged. Some Home Owners Associations are not active and do not hold meetings.

In order to obtain the required consent it will then entail approaching every registered owner who is a member of the association to sign the required consent. If you are a member of such a non-active association you are advised to take the necessary steps to ensure that it becomes operational and starts to meet in order to prevent the onerous requirement of having to approach every owner to consent in the event of the sale of your property.