About Me

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I am a qualified Attorney. I specialise in Property Law, Commercial Law, Corporate Law and Trusts.
 
Please visit our website at www.prop-law.co.za for more details.
 
I am an elected Committee Member of the Property Committee of the Association of Pretoria Attorneys and through my involvement, I like to ensure that I am constantly at the "sharp-end" of Conveyancing Practice.

I am the elected Chairman on the Gauteng Council of SAPOA. The South African Property Owners Association (SAPOA) is the biggest and most influential institution in the property industry. SAPOA members control about 90% of commercial property in SA, with a combined portfolio in excess of R150 Billion (about $22 Billion). I am also on the National Council and the National Legal Committee of SAPOA.
 
Member of the Institute of Directors South Africa and Member of the Sirdar Governance Panel.

18 December 2012

Rise in new wealth bodes well for residential property

Rise in new wealth bodes well for residential property


Recent reports of current annual growth of 31% in the ranks of the wealthy in South Africa (compared with 19% in 2010) is good news for prime residential property says Gauteng luxury homes marketer Ronald Ennik.

"Firstly, it will create a welcome new layer of buyers of luxury homes. Secondly, the sustainability of the top end of the market will be reinforced as more and more of the new wealthy buy into it.

"Thirdly, it will compensate for the (hopefully temporary) withdrawal of foreign investors who, in spite of the attractions of the weaker Rand, seem to be adopting a wait-and-see strategy based on recent negative socio-economic and political developments in South Africa," says the CEO of Christie's-affiliated Ennik Estates.


•Meanwhile, in the recently published global Wealth Report 2012, Renato Grandmont, chief investment officer for Citi Wealth Management and Citi Private Bank in Latin America, picks Johannesburg as one of the world cities of the future (along with Cairo, Lagos, Mumbai...and other well-established centres such as London, New York and Moscow).

"This comes as no surprise," says Ronald.

"With its world-class infrastructure, Johannesburg remains the port of entry for foreign business visitors to Africa - and particularly the fast-growing Southern African region.

"As a result, upmarket Sandton, is now by far the most favoured base for foreign corporates intent on establishing operating footholds in the region," says Ronald.

"This has hugely favourable implications for Johannesburg's luxury residential property market," he concludes.

Ennik Estates Press Release

12 December 2012

Middle segment property values rise 5% on Absa index

Middle segment property values rise 5% on Absa index

Middle segment property values increased by 5 percent year on year last month following a revised 3.3 percent year-on-year rise in October, according to the latest Absa house price index released yesterday.

However, Absa said average house prices in the first 11 months of this year were unchanged compared with the corresponding period last year.

In addition, Absa said although the year-on-year growth in the average value of homes in the middle segment of the housing market increased further last month, month-on-month house price growth continued to be on a downward trend.

This trend commenced at the middle of this year and was expected to affect year-on-year house price growth "in the near future", said Jacques du Toit, a property analyst at Absa Home Loans.

Du Toit said real price deflation was still evident in the middle house segment up to October but the downtrend was being arrested, with the smalland medium-sized categories showing some real year-onyear growth in October. Real house prices are adjusted and deflated to take account of the impact of inflation.

Du Toit added that relatively low nominal house price growth was forecast for the next 12 months and with headline consumer inflation projected to average around 5.5 percent next year, some real house price deflation might still occur for most of next year.

FNB reported last week that while the housing market, along with house price growth, did experience some improvement in strength earlier this year, the pace of improvement appeared to have been tapering off and was reflected in the slower growth in house prices.

Its house price index slowed further last month with yearon-year house price growth dropping to 0.5 percent.

John Loos, a household and property sector strategist at FNB Asset Finance, said this was the eighth consecutive month of tapering growth since the relatively impressive 8.4 percent peak in year-on-year growth reached in March this year.

FNB said the average value of home transactions on its index was R819 733 last month.

Business Report

Super rich flock to Sandton, Cape Town central

Super rich flock to Sandton, Cape Town central :

Where do South Africa's wealthiest people live? A report from London-based consultancy Wealth Insight sheds some light on their geographical distribution.

With 36 multimillionaires, Sandhurst accounts for the largest proportion of Johannesburg's ultra high net worth individuals (UHNWIs). Bryanston accounts for the second-largest percentage, "although it is a significantly larger suburb than the likes of Sandhurst, Hyde Park and Westcliff ", the report notes.

"The area known as Sandton, which includes Sandhurst, Sandown, Morningside, Hyde Park, Melrose, Atholl and a number of other suburbs, is home to over half of Johannesburg's UHNWIs."

The report also notes that a number of South African companies moved their head offices to Sandton, following a rise in crime in Johannesburg's city centre between 1990 and 2000. "Most notably, the JSE moved to Sandton in September 2000 from the central business district. Sandton has continued to grow strongly between 2000 and 2011 and is considered to be the banking and wealth centre of South Africa."

Central Cape Town accounts for the highest proportion of that city's UHNWIs (17 percent). The bulk of these are based in the Waterfront Marina, Higgovale, Green Point, Oranjezicht and Tamboerskloof.

According to Wealth Insight research, Camps Bay, in second place, is home to the largest number of South African homes worth more than R20 million, while Clifton, in third place, is home to the largest number of South African homes worth over R50m. Clifton is also the most expensive residential area in the country.

Clifton and Bantry Bay in particular are hotspots for wealthy foreign billionaires who own some of the largest properties in these areas. The report notes: "These individuals are not included in our count as they are based in other countries. Other wealthy Cape Town areas with more than one billionaire include Hout Bay, Newlands, Upper Claremont, Kalk Bay and Simon's Town."

Business Report

10 December 2012

Diepkloof Square community shopping centre opens in Soweto

Diepkloof Square community shopping centre opens in Soweto

Soweto entered a new era of convenient, quality retail when Diepkloof Square community shopping centre opened, fully let, on November 29.



Diepkloof Square in Soweto opened last month.



The 16 108 m2 community centre is anchored by Pick n Pay in a 3 112 m2 store and features 50 shops, including a new 1 720m2 Food Lover's Market.

"Diepkloof Square is a really exciting project," says Food Lover's Market group property and business development manager Graeme Liebenberg. "Diepkloof holds a special place in the heart of many South Africans.

"It was one of the earliest communities in Soweto and many influential South Africans live, have lived or passed through this suburb."

In the epicentre of affluent Soweto, Diepkloof Square is positioned in an exciting setting in a growing community in Diepkloof Extension 3 near the N1, with excellent visibility and access from the main arterial road serving Diepkloof, Immink Road.

"Diepkloof Square will provide quality retail in a smart, modern setting - giving residents easy access to tailormade convenience shopping," says Jason McCormick, the managing director of developer McCormick Property Development.

"The centre pays meticulous attention to top design, apt retailer mix and the daily shopping needs of one of the wealthiest township suburbs in the country."

Highlighting its thoughtful design, McCormick points to Diepkloof Square's covered food court as a vibrant space for the community. "Diepkloof Square is more than a shopping centre, it's a town square - a place to meet and share a sense of community."

McCormick Property Development has pioneered retail development in South Africa's emerging markets since 1983 and has 49 completed developments to its name.

For Diepkloof Square's development, McCormick partnered with leading African black-owned and managed investment holding company Shanduka Group.

Leasing Diepkloof Square is Retail Network Services - a full-service specialist retail leasing company with successes such as Pan Africa Shopping Centre in Alexandra, Protea Glen Shopping Centre in Soweto, Tsakane Mall in Springs and Jabulani Mall in Soweto to its name.

Gavin Tagg, of Retail Network Services, says the shops and services at Diepkloof Square mirror its upmarket setting.

Yet despite this they still offer a large assortment of grocery and food stores to cater across income groups.

"Diepkloof Square features an array of leading retailers which appeal to everyday needs of this growing local market," he says.

In an area previously underserviced by shopping, retailers have lined up to satisfy Diepkloof 's consumer needs. Besides Pick n Pay and Food Lover's Market, its retail mix includes Ellerines, Beares, OK Furniture, JD Group, McDonalds, King Pie, Steers, Debonairs, KFC, Old Mutual, Nedbank, Standard Bank, Cashbuild, Roots, Vodacom, Pep, Modjo Hair, Randcon Paints and Diepkloof Medical Centre.

With its prime location, modern design, exciting retail mix and unmatched local shopping experience, Diepkloof Square also offers generous parking and excellent access to public transport with an adjacent existing taxi rank.

"Diepkloof is a strong community with ample amenities that create a vibrant node for its residents and form a natural retail node," says Tagg.

"It is attracting an increasing number of middle-class and aspirant residents.

"Diepkloof Square is set to become the dominant retail node in the Diepkloof area and its surrounding suburbs."

Weekend Argus (Sunday Edition)

How to build a credit history for your home-loan

How to build a credit history for your home-loan

Contact us for advice and assistance. (www.prop-law.co.za)




In today's real estate market it is imperative for consumers to establish an excellent credit record and maintain it.

By establishing a credit history, consumers ensure their best possible chance of bond approval, says Adrian Goslett, CEO of RE/MAX of Southern Africa.

"Having a favourable credit record is essential for consumers who aspire to own property. While lending criteria is not as stringent as it was when the National Credit Act (NCA) was initially introduced, the requirements in the current market are still strict and it is likely to remain that way for some time," he says.

"Just as important as a positive credit score is an established credit history that shows that the consumer can conduct their credit responsibilities in a favourable manner. A consumer's credit history will have an impact on whether or not the loan is granted and if the loan is granted, it will influence the interest rate at which the bank will finance the deal. Financial institutions use this information to assess the probability of the applicant defaulting on their payments, which will in turn give them an idea of whether or not granting the loan is a high risk. Those who have finished their studies and are preparing to enter the job market will need to ensure that they take the necessary steps to build a good credit history."

According to Goslett, financial institutions will generally look at how a prospective homebuyer has conducted their credit accounts over the last six months, so if an applicant wants to ensure an optimum chance for approval, they will need to have an excellent credit record and history for at least the six months prior to submitting their application. He notes that establishing a credit history is slightly more challenging due to the fact that lenders are extra cautious of new applicants. Goslett offers a few tips for so those who want to establish a credit history and are applying for credit for the first time:


•Easy does it

Don't apply for too much credit at once and only apply with a reputable credit provider. Goslett says that it is best to start off slowly and only apply for small amounts that are easily manageable. He explains that applying for too much credit will send the incorrect message to the lender and they will think that you are desperate. It is also important to only make one application at a time, as too many applications for credit facilities will have a counterproductive effect that could negatively impact the consumer's credit score. Pay down accounts as soon as possible, and be sure you don't take out more credit than you can afford to pay back.


•The power of three

As a general rule the consumer will require at least three lines of credit. With less than that the credit history might be considered to be too thin, however with more it may be considered too much. Goslett says that the golden rule is for consumers to make sure that they always leave a 30% or higher gap between what they owe and the credit limit as lenders will look for this minimum gap. It is also vital to still have the necessary disposable income required for bond approval in the future, so work out a strict budget and stick to it.


•Have different types of credit

The credit score algorithm likes to see different kinds of accounts. Applicants should not just have revolving credit, but where appropriate, a closed-end loan or account such as a car loan. Goslett says that how the various accounts are managed is more important than the variety of the credit. He notes that is very important that all accounts are paid according to the loan agreement and no late payments are made. This will reflect responsible financial behaviour.


•Deposit money into a savings account

Start to build a good bank account balance by depositing money into a savings account each month for your home loan deposit, as this will show financial stability. Goslett says that the fact that you have a deposit saved up will stand you in good stead and improve your bond approval chances.

Goslett concludes by saying that consumers should remember that even with an established credit history and excellent record, homeowners will need to be able to afford their monthly repayments. Affordability and disposable income will remain the crux of the bond approval process in the year ahead.

RE/MAX Press Release

06 December 2012

New N1 interchange proposed for Tshwane

New N1 interchange proposed for Tshwane


Plans are under way to tackle problems related to traffic congestion in the Ashlea Garden/Garsfontein area. Tshwane Metro Council will construct a new interchange as part of the plans for the area.

This will result in the closure of Matroosberg and Dely roads, between Garsfontein and Matroosberg roads, Ashlea Gardens, to make way for the Garsfontein/N1 interchange.

Garsfontein Road will be upgraded to a four-lane road between the Garsfontein/N1 interchange and Selati Road.

The construction of the Garsfontein/N1 interchange is aimed at improving accessibility to and from the N1.

According to the municipality, traffic volumes are expected to grow significantly on roads such as Garsfontein, Dely, Brooklyn and Selati, "which would have a significant impact on the residential environment between these gateways".

Executive mayor Kgosientso Ramokgopa said council would ensure that the residential character of those areas was protected.

"We would like to minimise rat running in those suburbs and to ensure that their residential character is protected," he said.

Ward councillor Siobhan Muller said it was encouraging to see the municipality protect the residential character of the suburbs.

"Too often, the rights of developers have been allowed to overshadow the rights of residents who lived in the suburbs long before the developers moved in," she said.

Muller said it was essential to protect the suburban streets from rat racing due to the high volumes of traffic on high order roads to accommodate office and retail development.

"It is essential to prevent gridlocks of traffic on the higher order roads which guarantee rat racing through the quieter suburban roads.

"In this particular case, this closure is critical to the survival of the residential character of Ashlea Gardens."

According to Muller, developers had already eyed the area and started to move in, over the mid-block line, into the residential area.

"They had hoped to bully the residents into accepting intrusion into their quiet suburb. This closure will make sure that residential and development of office space each has a place."

Pretoria News

Tshwane claims progress in turning Pretoria CBD around

Tshwane claims progress in turning Pretoria CBD around



Tshwane Metro Council has recorded several successes under its "I can" project aimed at ridding the city of crime and grime and ensuring that by-laws are adhered to.

These include the recovery of 37 municipal rubbish bins; the issuing of 27 notices for contravening the by-law on health and solid waste; the closure of a tavern on the corner of Sophie de Bruyn (Schubart) and Boom streets and the arrest of 83 illegal immigrants.

Deputy city manager, service delivery co-ordination and transformation management, Ronnie Boshielo stated in a report that "I Can", was aimed at among others, the removal of illegal posters, the removal of illegal structures on council-owned road reserves, addressing trade, illegal transport activities.

The project is also aimed at fixing broken street lights and traffic signals, damaged street signals and potholes, and cleaning the urban environment by concentrating on roads and road reserves, open spaces, cutting of trees and enforcing town planning and national building regulations.

Boshielo said informal trade in the inner city faced many challenges that restrained its development and growth.

These include the lack of adequate amenities like sanitation , insufficient demarcated area for trading, the lack of overnight facilities for traders and congestion, especially in Church Mall, between Lilian Ngoyi (Van der Walt) and Thabo Sehume (Andries) streets.

Boshielo said interventions, to be introduced in phases, had been identified and these included the conversion of Barolak building in Johannes Ramokhoase Street (Proes) into an informal traders' market, the paving and erection of trading shelters in Lilian Ngoyi Street (Van der Walt) and the "decluttering" of Church Mall.

DA councillor Clive Napier said one of the biggest failures of the municipality was its inability to vigorously enforce its by-laws.

He said there were by-laws to address many of the issues referred to in the report.

Napier added that the metro police should be involved in the tracking down of advertisers who put up illegal posters that bore their phone numbers on their advertisements. "The same illegal advertisements have been appearing for a year or more. Why are the perpetrators not jailed?" he asked.

Napier said a few years ago, the mayoral committee took a decision to prohibit national and provincial government departments from relocating from the inner city to the periphery of the CBD.

He said grand plans were announced some years ago, backed by money from the province for the Lilian Ngoyi Square, on the corner of Lilian Ngoyi (Van der Walt) and Helen Joseph (Church) streets.

"We want to know what is happening in this regard," said Napier.

The member of the mayoral committee responsible for economic development and planning, Subesh Pillay, said there had been a marked increase in the number of commercial entities that were coming back into the inner city.

Pillay said the council was of the view that Lilian Ngoyi Square was not ideal for an informal market.

"We want to move the informal market to Marabastad," he said.

Pillay said a new design had been developed for Lilian Ngoyi Square.

The new-look square will, according to Pillay, be an open-flow system which will integrate with the pedestrianisation of Helen Joseph (Church) Street.

It will have a stage where artists can perform and a monument to honour the women who took part in the anti-pass law march in 1956. "We want to create something along the lines of Time Square (New York), which will be integrated into the State Theatre."

Pretoria News

05 December 2012

Work on Pretoria's Paul Kruger Street to start in June

Work on Pretoria's Paul Kruger Street to start in June

Work is expected to start next year on the beautification of one of the main routes in Pretoria's inner city, Paul Kruger Street.

Member of the mayoral committee for economic development and planning, Subesh Pillay, said yesterday work would start around June next year.

PRETORIA


Paul Kruger Street is expected to be closed to certain types of traffic, with the route reserved for the proposed Bus Rapid Transit (BRT) project. Line 1A of the BRT project is expected to run from the Rainbow Junction (Pretoria North) to Nana Sita Street (Skinner) along Paul Kruger Street.

Stations will be situated on Paul Kruger Street, south of Church Square; on Paul Kruger, between Struben and Johannes Ramokhoase (Proes) streets; and on Paul Kruger, north of Boom Street and at Mansfield Road in Eloffsdal.

A report submitted to the city council said the BRT would be located on a transit mall on Paul Kruger Street.

The mall would have 6m-wide pavements to be pedestrian-friendly. Only BRT buses and emergency vehicles would be allowed to operate around the transit mall.

No on-street parking would be allowed at the transit mall or within the Church Square precinct.

Pillay said arrangements would be made for business people to access their premises via Paul Kruger Street.

"We have conducted an audit of all businesses and government departments that access their premises on Paul Kruger. All these will be communicated with directly to inform them of these arrangements."

Pillay said the municipality had undertaken a traffic impact analysis that indicated where the spill-over traffic "will likely route to".

The metro police would deploy members to conduct traffic-flow management operations, he said.

Pillay said a significant number of people entered the city centre on public transport.

"This has also been studied and appropriate arrangements are being finalised as part of the pre-implementation arrangements.

"It is expected that there will be increased congestion on alternative routes. These will in part be mitigated by the deployment of metro police as well as the capacity increases proposed.

"But... the ultimate intention is to migrate greater numbers of people out of private vehicles into public and non-motorised transport."

Pillay said the congestion would invariably cause inconvenience.

"But this is regrettable and almost unavoidable as we pursue the implementation of our public transport strategy and enhanced urban management of the Tshwane inner city."

Pretoria News

When the state expropriates private property

When the state expropriates private property

Governments or their agencies have the power to take away privately-owned land or property - usually for public use.

Most governments compensate the deprived owner for the expropriated property. In some countries, like the US, an owner's permission to expropriate property is not needed, although the owner is "justly compensated".

The South African constitution requires the government to pay the owner the market value, or what is "just and equitable" in a particular situation.

Does a tenant have any claim for compensation if the owner's property is expropriated?

Take the case of an owner who agrees to his property being expropriated in return for payment.

He is allowed to continue occupying the property as a tenant, but later discovers that the municipality has changed the purpose for which the property would be used.

Does he have a claim against the municipality for "misleading" him, or can he have the expropriation reversed?

Legal complications may follow when properties are expropriated for a specific use, but are later used in a different manner.

The previous owner may challenge a municipality for unjust administrative action in the wrongful expropriation.

Such was the case that started in 1997 when the Richards Bay Council (later to become the Umhlatuze Municipality) expropriated John Rex Harvey's properties ( Harvey v Umhlatuze Municipality & others).

Together with other properties that formed "The Ridge" that was rezoned as public open space, the council intended to develop, for public use, a passive recreational open space and

e-mail cil's appeal committee was dismissed in January 2008 and by February, Crystal Lagoon Investments 44 CC was awarded the tender.

Harvey eventually took the matter to the KwaZulu-Natal High Court, Pietermaritzburg, challenging the council to have his properties returned to him at market value.

The court, in a lengthy judgment in which the laws on expropriation of a number of countries were examined, found that the council did not violate Harvey's constitutional rights.

The only right Harvey had was that of a tenant, and any eviction would follow the due legal process.

He was not entitled to have his properties back, despite the fact that the council had changed its declared purpose regarding the properties.

The council was the owner of Harvey's properties through expropriation and did not violate "any of its constitutional and legal obligations" to Harvey.

"In our country there is no principle of law whereby 'property that was expropriated for a public purpose that was never realised (or for a purpose that ceased to exist) should be returned to the original owner, even if compensation was paid for it'. Such a principle cannot be extracted from the jurisprudential framework established by the Constitutional Court..."

The case was dismissed and no cost order was made against Harvey since the case raised a unique and novel issue, which, in turn, raised important constitutional and legal considerations.

For tenant's rights' advice, contact Loshni Naidoo or Pretty Gumede at 031 304 6451

Dr Sayed Iqbal Mohamed
Chairperson, Organisation of Civic Rights
Daily News

04 December 2012

Joburg set to pay high fee to rebuild its tarnished image!

Joburg set to pay high fee to rebuild its tarnished image!

How much is fixing Joburg's reputation worth? R145 000? R10 million? Five times that?

The City of Joburg is fed up with its bad reputation and is looking for a professional reputation management company to help clean up its image, and has received some expensive offers.

"Being the biggest municipality in South Africa, the city enjoys a lot of media attention. Therefore, a good reputation is key," the city document outlining the problem said.

"Group Communication and Tourism has therefore identified a need to obtain the services of a well-established reputation management company for the purpose of assisting the city manage and enhance its image and reputation."

Joburg has been strongly criticised by its residents over recent years for its shambolic billing system.

The city is prepared to pay for a good reputation fix.

"This contract exceeds R10 million," states one section of the document.

Bids closed last week and four contractors are interested, according to the city's list of the bids.

Meropa Communications has bid R145 464, Brightspark Communications bid R3.4m, Vuma Reputation Management asked for R29.3m and Barolong Group bid R55m.

The document said a good reputation would help to secure customer loyalty.

"The city understands that a good reputation cannot be created overnight. The city also understands... that communication must be based on a clearly defined strategy."

The services which the city wants include reputation management workshops, crisis management, "thought leadership", "key messaging", media training, management of media placing and press releases.

The company must show the city a list of at least five current clients, and show at least one reputation management contract it has completed. It must have experienced staff to deal with the city's account. City spokesman Nthatisi Modingoane said the contract was still being adjudicated.

The Star asked how such spending was justified.

"The three-year tender caters for all city departments and municipal entities, and the amount stated serves as a ceiling for maximum spend. Suppliers are paid according to a project delivered," Modingoane said.

The Star asked if this was an attempt to whitewash over problems like slow delivery and billing problems.

"The city has never denied the challenges it faces and has continuously communicated actions taken to deal with these challenges.

"Moreover, the city has proactively initiated a process of establishing an ombudsman office," Modingoane said.

The Star

What are a property's fixtures and fittings and what aren't?

What are a property's fixtures and fittings and what aren't?

It is not uncommon for disputes to arise between a buyer and a seller regarding what is classified as a fixture and fitting and what isn't.

"In many cases there are certain items that a seller has installed and would like to remove from the property and take with them when they move," says Goslett of RE/MAX Southern Africa.

"Sellers often ask whether they are allowed to do this and the simple answer is yes, provided that both parties are in agreement. Alternatively, if the agreement of sale excludes any specific item, the seller is entitled to remove it."

He points out that the general rule when it comes to fixtures and fitting is that the when the purchaser buys a property, they receive the land, the permanent physical improvements such as any buildings erected on the land, along with all items that are permanently attached to the improvements or buildings that are erected on the land.

Goslett notes that in the instances when disputes do occur it is normally when the agreement of sale is vague and simply states the property is sold 'as is' or voetstoots and includes all upgrades, fixtures and fittings of a permanent nature. In cases such as these it is important to determine what is regarded as permanent nature. In order to do this, three questions must be asked, which are:


•What is the nature and purpose for which the item was attached? The item must be attached to the land or the structure erected on the land. It should be of a permanent nature or intended to always serve the land.


•How and to which degree was the item attached? It should be sufficiently attached so as to become part of the land or structure. If removing the item will cause substantial damage to the structure, it should be considered permanent.


•What was the intention of the owner when attaching the item? If the intention of the owner was to permanently attach the item, then that should be taken into consideration.

Goslett says that generally if the item is bolted down, cemented, sown or planted and has taken root it normally becomes permanent. He notes that some items such as Wendy Houses and Pergolas or other similar structures can be contentious issues. If they are permanent structures that will remain on the property, plans should be provided by the seller to buyer.

"It is very important that the sale of agreement between the buyer and seller covers all aspects of the transaction to ensure that nothing is to left to interpretation by either party. There are some agreements that do not refer to fixtures and fitting at all, however taking the time and care to ensure proper drafting of your agreement could save you possible frustration later on," says Goslett.

"Ensure that all aspects and agreements are in writing, do not rely on verbal communications and always create a paper trail. If a dispute does arise, the court will consider all the surrounding circumstance, facts and even the conduct of the seller. Therefore the seller should always be aware whether or not his action may be creating a certain impression with the purchaser as to whether or not an item is included in the sale."

According to Goslett, the seller should prepare a list itemising exactly what is to be sold with the house prior to listing the property with an estate agent. "The list should be incorporated into the mandate to sell so that the agent can point out to potential buyers any items that will be removed by the seller at a later stage," he says.

He adds that a basic clause regarding the fixtures and fittings should be included in the agreement of sale, otherwise referred to as the offer to purchase. The clause should be similar to the following:

The property is sold inclusive of all existing fixtures and fittings of a permanent nature, which the seller warrants are his/her exclusive property, fully paid for and in working condition, including but not limited to: the existing garden, trees, shrubs, plants, curtain rails, rods, pelmets, fitted carpets, the light fittings, stove and/or oven, hanging mirrors, towel racks, shelves, as well as special tap fittings, removable kitchen units, tennis court net, fire place grate/blower, fitted kitchen storage units, awnings, post box, burglar alarm system, doorbell/knocker, the television aerial and accessories (if applicable), pool filter, pump and all cleaning equipment including automatic pool cleaner (whether fixed or movable, if applicable), swimming pool equipment, inner and outer door keys.

"It is clear that the list could be endless and it is therefore important for the seller to consider exactly what they are intending to sell. If any items are to be removed by the seller, both parties will need to agree and remove the item from the clause stated in the agreement. Open communication channels and ensuring all items are covered in the agreement will ensure that conflict is avoided by both parties," Goslett concludes.

RE/MAX Press Release

03 December 2012

Fais Ombud orders Sharemax broker to repay R800 000

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Fais Ombud orders Sharemax broker to repay R800 000
The Ombud’s finding will worry brokers who sold shares in Zambezi and The Villa.

Financial advice ombudsman Noluntu Bam delivered her first negative finding against a Sharemax broker last week. Her determination may spark fear among those who sold shares in the property syndication company’s two biggest projects, Zambezi and The Villa. It may also encourage other investors to lay complaints against their brokers.

Sharemax is one of the country’s two largest sellers of property syndication schemes. Investors, many of them elderly, have placed about R4.5bn in its numerous schemes. The Villa and Zambezi together account for R2.5bn of investors’ funds. They are also two of the most troubled schemes.

On Wednesday Bam ordered financial adviser Deeb Risk to repay his client, 72-year-old retiree Elise Barnes, R800 000 she had invested in Zambezi. Barnes actually invested R1.4m in the scheme, but the Ombud’s office is only empowered to adjudicate on losses up to R800 000.

A copy of Bam’s order can be downloaded here.

Risk declined to comment on Bam’s finding. He would only say that he will appeal it.

Some commentators have claimed that a complaint against Sharemax brokers would be premature because it is yet to be determined how much investors stand to lose. Moneyweb has previously argued that this should not prevent investors from laying complaints against their financial advisers, and the Ombud’s ruling confirms this view.

Says Bam in her ruling: “The issue is not whether some monies will be recovered by [Barnes] at some future unknown date. The test is whether the advice, given [Barnes’s] circumstances was appropriate. The advice provided was patently flawed.”

Bam had some harsh words for Risk, who she says meant to sell the Zambezi product to Barnes “whether it made sense or not, whether it was inconsistent with [her] circumstances or not”.

But it is Bam’s comments about the Zambezi scheme in general that should be of more concern to Sharemax brokers.

“Had [Risk] read and understood the prospectus he ought to have appreciated the deficiencies,” says Bam.

She describes how the public company into which investors’ money was placed, had only one asset: a shareholding in a private company, Zambezi Retail. “Herein lies the danger,” Bam explains. “Private companies do not have their affairs being subject to public scrutiny.” Bam also notes that Sharemax ensured that at least three of its own directors will be at Zambezi Retail for five years from the date of registration of the prospectus.

“A provider acting with due skill and in the interest of his client would have asked himself, if the two major players, namely the two private companies, are controlled by the same persons, how is accountability, transparency going to be enforced and how is investor protection going to be ensured?”

Bam found that Risk had, among other things:
  • Failed to disclose that Sharemax Zambezi was a long-term, illiquid investment. His own documents revealed that Barnes would need her capital in one-three years;
  • Failed to disclose the risk inherent in the Zambezi scheme;
  • Failed to disclose the investment’s costs;
  • Did not recommend a product commensurate with his client’s risk tolerance;
  • Failed to act with due skill, care and diligence in the interest of his client and the integrity of the financial services industry.

Gareth Shepperson

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'Don't give up on bond application too soon'

www.prop-law.co.za


'Don't give up on bond application too soon'

Although the ongoing publicity on the National Credit Act and the continued tightening up of the banks' criteria for issuing bonds is to be welcomed in general, it has had the unfortunate effect of deterring many potential home owners from trying to realise their dreams.

This is according to Mike van Alphen, national manager for the Rawson Property Group's bond origination division, Rawson Finance.

"Although Rawson Finance has had a 20 percent increase in the number of bond applications and a 15 percent increase in the rise of approvals this year, we know that many people who could actually qualify for a bond have given up," he says.

"Very often such people have been deterred by a refusal at one bank, but bond originators may be able to help. Bond originators will be able to establish what size bonds they qualify for and, with the help of the credit bureaus, find out what obstacles there may be.

"If they do have tarnished credit records, it is often possible to rectify matters and most bond originators have professional contacts in the credit reinstatement field to whom they can refer applicants.

"Time and again we come across tenants who are paying a very high percentage of their salaries in rent, when they might qualify for mortgage bonds over 20 years, which, with the same or a slightly increased monthly outlay, would have a value of anything from R600 000 to R950 000.

"With prime at a 31-year low of 8.5 percent, and with banks often willing to offer fixed rates for up to five years, this is a good time to be borrowing money."

After talking to a bond originator, he says, the first step should always be to start saving, if only because 100 percent bonds are difficult to come by and banks will look far more favourably on applicants who can put down 10 percent to 15 percent deposits.

"Household debt in South Africa is running at well over 60 percent and all the records show that unsecured debt rises month-by-month. We have to get the message across that, in the long run, it will be far more satisfactory to spend that extra cash on becoming a home owner," says van Alphen.

Weekend Argus (Sunday Edition)

Machanik admits guilt, regrets actions

www.prop-law.co.za


Machanik admits guilt, regrets actions

Former estate agent Wendy Machanik deeply regrets the actions that led to her conviction on 90 counts of theft, she wrote in a newspaper opinion piece yesterday.

"I'd like to hereby state clearly and unambiguously that, yes, I am guilty of unlawfully accessing my company's trust fund to the value of R17 million, but not in the manner or for the reasons portrayed," Machanik wrote in the Sunday Times.

Machanik was fined R1.5 million by the Johannesburg Specialised Commercial Crimes Court last month under a plea agreement in terms of which she admitting to 90 counts of theft totalling R27m, and two of failing to keep proper records of her company's trust fund. She wrote yesterday that her business, Wendy Machanik Properties, was hit by the economic downturn in 2007 and that she borrowed from the trust in an attempt to save her employees' jobs.

"Looking back now, I know what I should have done. I should have allowed the company to fold, declared bankruptcy and walked away...

"But I felt it was my responsibility to my employees and their families..."

Machanik said she paid back the money, but was later contacted by people who wanted to extort money from her in exchange for their silence.

She was now virtually penniless and was about to start a sentence of long-term house arrest.

The court fined Machanik R1 000 (or a year's imprisonment), suspended for three years, for failing to keep and audit accounting records.

She was also sentenced to three years' correctional supervision and fined R1.5m.

The Mercury