Passing of Risk From Seller to Purchaser

Passing of Risk From Seller to Purchaser

The parties have signed the sale agreement, the conveyancers are busy with the transfer, and the buyer has taken occupation before transfer. Then the trouble starts – the buyer finds damp in the walls, the geyser bursts and the retaining wall collapses. Who is liable for the repairs? Determining the passing of risk from seller to purchaser is an important part of property transfer.

The person who holds the risk to the property is usually the person who is liable for all expenses and damage to the property, and who is entitled to the income and benefits in the property. In the context of a sale of immovable property, risk determines who must correct a defect or damage to something that happens after signature of the sale agreement.

Defects which existed at the time the sale agreement was signed are usually governed by the voetstoots clause. The purchaser is stuck with all visible (or patent) defects and those defects which were not visible at the time of signature of the sale agreement and of which the seller was unaware.

Sale agreements usually state the passing of risk from seller to purchaser. In most cases, risk in and to the property is transferred from the seller to the purchaser on date of registration of transfer. In certain instances, such as when the purchaser takes early occupation of the property, the risk in and to the property may be transferred to the purchaser from date of occupation.

Purchasers need to be aware of when the risk in and to a property is transferred to them as this will affect their obligation to pay for insurance, rates, water and electricity to the property depending on the terms specified in the sale agreement. Risk also relates to things that may go wrong while the purchaser has risk but is not yet the registered owner of the property, such as a geyser bursting: the seller may not be liable for such defects if the risk had already passed to the purchaser.

Therefore, parties need to be aware of when risk passes so that the obligation to repair defects or damages to the property does not become an expensive dispute between the parties.

If you need any help with your sale agreement or property transfer, we will gladly guide you. Contact Marchelle at marchelle@fouriestott.co.za or 031 266 2530. #peoplematter

Insolvency – Turbulent Waters

Insolvency – Turbulent Waters

It is a sad reality of the COVID-19 pandemic that many companies and individuals have been severely affected by the ongoing lockdown restrictions and economic headwinds. This has resulted in a sharp upturn in the number of companies facing either business rescue or liquidation. This includes directors who are tied in as sureties and could potentially face sequestration in their personal capacity. In such an overwhelming situation, many companies need help navigating the turbulent waters of insolvency.

 

There are various options available to companies facing this situation, whether it is a temporary cash-flow problem or a worst-case scenario where the company is facing insolvency and should liquidate as best it can. This situation also affects those companies who have weathered the COVID-19 storm, but now have increasing book debt because of customers who cannot pay.

 

We can help you with the following:

  1. Advising your company on how best to secure and recover your outstanding book debt with debtors before they are liquidated or sequestrated.
  2. If your company is in financial difficulty, assessing the best option available for your business. These options include entering into business rescue, compromising with creditors, or liquidation.
  3. Advising on all ancillary aspects of liquidation and sequestration.

 

For personal and professional advice contact Peter Feuilherade (peter@fouriestott.co.za), Chris Salmon (chris@fouriestott.co.za) or Claire Delport (claire@fouriestott.co.za). Our office number is 031 266 2530. #peoplematter

To Buy or Not to Buy During Covid-19?

To Buy or Not to Buy During Covid-19?

Property sales took off like a rocket last year as interest rates were reduced and travel plans scuppered as a result of the Covid-19 pandemic. You might be thinking about buying property during Covid-19 yourself.

It is yet to be seen how long this trend will continue, but current interest rates and restrictions on global movement appear to be set in for 2021. If you would like to read more, see Pam Golding’s Garry Meston’s commentary on current property trends and Dr Andrew Golding’s insights on the impact the Covid-19 pandemic has had on the buying trends of the various generations.

If you are thinking about or are already buying or selling immovable property, you are probably feeling overwhelmed by a sudden onslaught of information to retain and forms to complete. We hope that our newsletters breaking down the transfer process (from signature of the sale agreement to registration of transfer in the Deeds Office), transfer costs, compliance certificates, FICA and various other aspects will be of value to you in demystifying the transfer process.

Our role as conveyancers usually starts once the sale agreement is signed and finishes once the transfer is registered in the Deeds Office, however, Private Property’s Seller’s Guide and Buyer’s Guide are good resources for the ancillary aspects relating to the sale or purchase of immovable property from when you first start thinking about it until the moving vans have left.

If you need any help with your sale agreement or property transfer, we will gladly guide you. Contact Marchelle at marchelle@fouriestott.co.za or 031 266 2530. #peoplematter

Beware Early Occupation

Beware Early Occupation

The risks of allowing your purchaser early occupation of your property before it has been transferred into their name can be far-reaching and severe. The following are just some of the things that can go wrong:

 

  1. One of the parties can die;
  2. The purchaser may find a defect and refuse to proceed until it is remedied (the seller will then be at a disadvantage because the purchaser is in possession of the property);
  3. The purchaser may not pay occupational rental;
  4. The purchaser’s financial circumstances may deteriorate and the bank may withdraw the bond;
  5. The purchaser may make structural changes to the property without your permission;
  6. Something in the property (like a pool pump) may break and the parties will argue about who is responsible to repair it.

 

If your sale agreement is not worded clearly, the solution to the above issues may not be clear and this will cause a delay and possibly destroy the deal.

 

If you are considering allowing your purchaser early occupation into the property before transfer, you can mitigate your risks by paying careful attention to the specific wording of your sale agreement to ensure that it is clear with regard to the passing of risk, the duty to maintain the property, the apportionment of expenses, alterations/renovations and occupational rental. The agreement must be clear (or amended) before you let go of your keys.

 

If you need any help with your sale agreement or property transfer, we will gladly guide you. Contact Marchelle at marchelle@fouriestott.co.za or 031 266 2530. #peoplematter

How to Ensure a Smooth Disciplinary Hearing

How to Ensure a Smooth Disciplinary Hearing

How to Ensure a Smooth Disciplinary Hearing

 

We have already canvassed in previous blogs the importance of a disciplinary hearing (“Hearing”) being held before any employee is dismissed, to ensure procedural and substantive fairness.

 

Planning for possible Hearings is prudent.

 

Having a Disciplinary Code (“Code”) in the workplace is a useful tool. It allows the employer to set out for the employees, in advance, what the potential sanction will be in respect of each particular form of misconduct, should the employee be found guilty of that particular offence. For example, a first offence of unauthorised absenteeism will result in a verbal warning. But a first offence of gross insubordination will result in a final written warning.  A Code also helps to ensure substantive fairness.

 

The Code should be freely accessible to all employees, and it is recommended that this be posted within the workplace where employees can access it with ease.

 

Once an employee is perceived to have committed an offence, arrangements need to be made for the Hearing to be convened. The Hearing should always be held within a reasonable time of the alleged offence. In instances where the alleged offence is so severe that the employee is suspended pending the outcome of the Hearing, employers must ensure that the employee is remunerated as per the employment contract during the period of suspension.

The Notice calling the employee to the Hearing should clearly set out the charges which the employee is facing. This provides the employee with sufficient information to be able to answer and respond to the allegations. The Notice should clearly state the date, time and venue for the Hearing, and inform the employee of his / her rights in regards to the Hearing. Most importantly, the right to have an interpreter assist him/her and to be represented by a fellow employee or union representative if applicable.

The Hearing should be chaired by a neutral third party, and many employers utilise the services of employer organisations or attorneys to chair the Hearings in order to ensure objectivity and that the correct procedure is followed.

 

Whether you are the initiator, representing the employer, or you are the employee facing the charges, it is always important that you prepare properly for the Hearing.

 

On the date of the Hearing, you must ensure that you have your documents and evidence in order and know which witnesses you intend to call to assist in proving your case.

To find out more about how we can assist you with your labour disputes and internal policies and contracts, contact our Labour specialist Claire Delport.

Choose The Conveyancer For Your Transfer

Choose The Conveyancer For Your Transfer

Sellers take note: You should choose the Conveyancer for your Transfer.

 

Why is it that the seller gets to choose which conveyancer attends to the transfer of immovable property, but the buyer has to pay that conveyancer?

We have a strange system in South Africa where the seller of immovable property has the right to nominate the conveyancer to attend to the transfer of that property. This is perfectly logical because the conveyancer is acting as the seller’s agent, to assist the seller to comply with the seller’s obligation to deliver the property to the buyer.

The problem comes in where the buyer is given the obligation to pay that conveyancer. In most cases, the buyer and the conveyancer have never met and the buyer often has a relationship with another conveyancer who is prepared to do the transfer for a lower fee. This causes tension at the beginning of an already stressful process.

In an attempt to resolve the tension, a buyer often either asks the seller to let the buyer’s conveyancer attend to the transfer, or the buyer asks the conveyancers to match the discount offered by the buyer’s conveyancer. The former situation is extremely dangerous for the seller. If there is a problem in the transfer (for example a failure by the buyer to pay the deposit), the seller will have to hope that the buyer’s conveyancer will act in the seller’s best interests, which often doesn’t happen. The latter situation places the conveyancers in a difficult position, where they need to “horse trade” or try to undercut their colleague to get the business, which is unprofessional and damaging to the legal profession.

 

In our view, the best solution in the current situation (and barring any challenge to current practices, which is perhaps overdue) is the following:

1. The seller must choose the conveyancer (this accords with the principle of agency in our law);

2. The conveyancer must do the job properly and for a fair fee (recommended fee guidelines are in place);

3. Buyers should be free to negotiate a discount but only closer to the registration of transfer once the parties are able to assess how everyone has performed during the transfer process.

 

A transfer costs calculator is available on our website should you wish to know what the recommended fees are for a particular transfer. Should you require any further advice on the transfer process, please contact Marchelle Botha.