Property and ownership information can be acquired at the appropriate deeds office in the province where the land is located. It is a very reliable record concerning the property and its owners since all the titles must be registered. The information is free and available to the public. This type of system works well in South Africa.
Transaction information is available at the appropriate deeds office in the province where the land is located. Since all titles must be registered, the transaction is not complete until it has been registered. This information is free and available to the public. A transaction is valid when the contract is signed by two parties, transferred deed is registered and the contract is notarized, if applicable.
Department of Regional Land Affairs
address: Private Bag X833
Pretoria 0001
phone/fax: 27 12 312 8911/27 12 323 7124
The Estate Agents Board
address: Private Bag X10
Benmore 2010
phone/fax: 27 11 883 7700/27 11 883 5655
Timeshare Institute of South Africa
address: P.O. Box 87660
Houghton 2041
phone/fax: 27 11 483 3587/27 11 483 3589
South African Property Owners Association
address: P.O. Box 78544
Sandton 2146
phone/fax: 27 11 883 0679/27 11 883 0684
Institute of Estate Agents of South Africa
address: P.O. Box 91636
Auckland park 2006
phone/fax: 27 11 482 8140/27 11 482 8105
The South African Property Owners Association (SAPOA)
PO Box 78544
Sandton
Johannesburg
2146
South Africa
Phone : +27 11 8830679
Fax : +27 11 8830684
e-mail : ngopal@sapoa.org.za
Web : www.sapoa.org.za
SAPOA THE VOICE OF COMMERCIAL PROPERTY SAPOA was established in 1966 by the leading large property investment organizations to bring together all role players in the commercial property field and create a powerful platform for property investors, indeed SAPOA members control +- 90% of all commercial and industrial property in South Africa. SAPOA is committed to protecting the interests of the commercial and industrial property sectors, in terms of ownership, management and development.
Real property may be held in one of two ways: leasehold and freehold. The true owner of a piece of property who has had that land taken from him/her in a fraudulent manner may legally stake a claim to that property without making any type of restitution to the individual who eventually possesses it.
Partnerships are able to own property. Partnerships may be created between two or more people either through a written or oral agreement. Each partner must contribute either labor or capital to the partnership for the benefit of all partners and with the object of making a profit. If these conditions do not exist, then a partnership has not been formed. Debts of a partnership are determined by the initial agreement between the partners. Common law regulates partnerships.
All different types of corporations such as limited liability corporations, unlimited
corporations, close corporations and co-operative societies may own real estate in South Africa.
Trading trusts can also be set up to hold property. Trustees manage the property for the benefit and profit of those individuals designated by the deed. Trading trusts are not common presently in South Africa, but there are some advantages to their use especially in commercial development.
Title & Contracts in South Africa
For the sale, exchange, or donation of a property to occur, it must be in writing and must be signed by the appropriate parties. The property then must be registered in the deeds office under the name of the transferee for ownership to actually take place. The paperwork for this transfer must be prepared by a conveyancer who practices within the province where the land is located. Mortgages, bonds, certain types of leases, and the transfer of property rights also require registration in the appropriate deeds office.
deeds: contract signed by both parties, deed registered with Deeds office in name of transferee, and notarized if applicable.
Public records: mortgages, deeds, leases over ten (10) years
Property and ownership information can be acquired at the appropriate deeds office in the province where the land is located. All titles must be registered. This information is available to the public.
In South Africa, common law rules govern concerning contracts. The only requirement for the sale of land is that both parties sign the contract and that the transfer be properly recorded. The law does not require any other formalities except the information contained in three acts. The first act is the Credit Agreement Act No. 75. It says that certain credit information must be given to a credit receiver before the contract has begun. The second act is the Usury Act No. 73. It deals primarily with leasing and money lending transactions. The third act is the Alienation of Land Act 68/1981. This act deals with installment payments and the sale of land. According to the Martindale-Hubbell law Digest, "contracts are voidable at instance of grieved party for numerous reasons, inter alia being: (1) false representations (this can be either negligent, willful, and deliberate fraud or innocent), (2) party not having required legal capacity, (3) mistake of fact not of law, (4) force and fear, (5) undue influence, (6) mental disability, and, (7) impossibility of performance" (SoA-4).
Leases do not need to be in writing in order to be valid. For a lease over ten years to be binding against third parties if, three steps need to be taken; 1) the lease must be in writing, 2) it must be executed before a notary, and 3) it has to be registered against the title in the relevant deeds office.
Non-Student Version:
elements of a contract: contract delivery of item pursuant to contract signed by both parties and registered in Deeds office in name of transferee
performance and discharge: purchaser can renig if express contractual warranties are not met; item is assumed free of defects regardless of express warranty; discharge may be applicable in cases of false representation, party not having required legal capacity, mistake, force and fear, undue influence, mental disability, impossibility of performance; interperted and determined by proper law
A breachcan occur in cases of false representation, the party not having required legal capacity, mistake, force and fear, undue influence, mental disability, and impossibility of performance; buyer may recind and seek damages. In the case of misrepresentation, one can only recind on the basis of an innocent mistake.
listing/sales contracts: sales of a business must give thirty (30) days notice in both official languages and in government Gazette There is no formal preparation in preparing contracts.
Property Taxes:
South Africa has many different types of taxation. All individuals, regardless of citizenship and corporations who have taxable income from a source inside the country are liable for income tax. Direct taxes on profits from trade and services rendered apply. A secondary tax applies to corporations and the distribution of profits. A value added tax is levied on the importation of goods and services to the country.
A tax on the transfer of real property (land and improvements) is at a rate of 10% of the property’s value for corporations. Individuals are assessed on a progressive scale depending on the value of the property. Exemptions are allowed in certain instances such as the purchase of unimproved land with the intent to build a residence.
The land tax is considered a lesser tax and is levied by the local governments. The value of the land is determined annually and is usually the measurement for taxation purposes, but sometimes the buildings and improvements are taken into account. In order to encourage foreign investment, the government has made concessions to foreigners in the determination of their taxable income. These tax incentives can be quite attractive especially in the area of industrial development.
Land Use & Control
South Africa has a non-codified civilian system of law. The statutes are generally based on the English common law and the Roman-Dutch law. Legislation and case law are the two main sources of modern law. Romanistic principles have been used in the law of property. Possession of property is protected, and ownership is usually all-inclusive and physically indivisible.
Real property can be mortgaged as security for a debt in South Africa.
A full range of commercial financial institutions are available. This list would include commercial banks, merchant banks, building societies, trade finance houses, and the government.
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