How to Start 2023 on the Right Legal Footing

As we head for the end of January (already), we begin to feel a sense of relief – we are already on our way. The year has begun and for all intents and purposes – it’s a “so far, so good” type of situation.

At least, for the most part. 

We hope Part I of this series (dealing with a new job and a possible new living arrangement), played a part in helping you get 2023 off on the right legal footing. Allowing you to feel all the feels and feel legally protected while doing so.

But those are not the only “new” situations that may arise requiring you to ensure everything is legally sound. 

In Part II, we will be covering some other exciting new developments you may come across and delve into what they are all about and what you should look out for in both the agreements you may enter into and the processes you may be involved in.

Without further ado – 

A new car

Aaah the smell of new leather, turning up the stereo and blasting your favourite tune while opening up your new car on the highway – on a journey to nowhere. Just getting out on the road.

The ability to get to wherever you need to go. From A to B or on a joyride. The open road can bring a sense of wonder and freedom. And who doesn’t want that?

We hear you. 

Whether you are purchasing your first car or are looking for an upgrade, purchasing a new car can be a daunting task. Especially with the price of vehicles these days. What’s worse, we have all heard the age-old adage about “second-hand car salesmen”. Some of them (very generally speaking) can be unscrupulous. And for those that are unaware or too trusting – the “joyride” you will be taken on won’t give you a sense of freedom but one of dread.

Not ideal.

It's therefore always a clever idea to ensure that your dealings with any salesperson are put into writing. In this regard, one of the agreements drafted most often, is a contract of sale (which can be used for both movable and immovable assets). 

Essentially a contract of sale is a legally enforceable agreement between two people – the party who is purchasing the asset and the other party who is the selling the asset (or a representative duly appointed to represent a person or company either purchasing or selling the asset). 

To be a valid contract of sale, both the seller and the buyer must agree on the following three elements (known as the essentialia of the contract of sale) – 

1. There must be a buyer and seller (which seems obvious) but they must also have the intention of one of them being the buyer and the other one being the seller;
2. There must be agreement (more specifically an offer and acceptance) between the buyer and seller on the asset being sold - which must exist at the time of the contract of sale (whether movable or immovable, corporeal or incorporeal) i.e. there can be no confusion or vagueness as to what item is being sold, and
3. The buyer and seller must agree on the purchase price – which must be in cash or a cash equivalent i.e. in monetary terms. 

Some other inclusions that can be expected to appear in any contract of sale are as follows – 

1. Detailed information about the seller and the buyer, for example – each party’s full name, ID number, physical address and contact numbers. Should a co-signer be involved i.e. a joint owner of the asset or joint “to-be” owner of an asset, then that person’s full details (as per the above) will also need to be included;
2. The effective date of purchase and sale (respectively);
3. Details around what type of sale it is;
4. Details about any deposit that has been or will be paid by the buyer;
5. Details around any suspensive conditions (a condition that essentially holds a contract in abeyance until such time as a specific condition has been met, read more on contracts here) related to the sale;
6. Details around the final closing of the sale, and
7. Details setting out transfer of ownership. 

Should you require assistance with your contract of sale – ensuring everything is not only “above board” but runs smoothly, get in touch with one of our suitably qualified attorneys – we are more than happy to assist and support you as you embark on the purchase of a new car, motorbike or whatever else you may be thinking of purchasing and/or selling.  

A new home

This may be in the form of an actual purchase of a home or could entail the lease of one. 

Purchasing a home

Purchasing a home will be one of the biggest expenses and (often) one of the most important decisions (and biggest responsibilities) you will make (and undertake).

As “straight forward” as purchasing a property may sound (although it is an entire property – how can it be straight forward, really?), it is anything but. It is quite a lengthily and complex process that is undertaken by specialist attorneys who specifically deal with property transfers – known as conveyancers. 

What does this conveyancing process involve? 

In a nutshell, conveyancing is the legal process that transfers ownership of a property from the seller to the buyer. The conveyancer is the specialist attorney responsible for attending to that transfer.  

How does one actually purchase a property?

1. Once a buyer has found a property they are interested in purchasing, they would submit an offer to purchase to the seller;
2. The seller would then consider the offer and if the price meets their expectations, they would accept the offer (indicating that the transfer of the property has officially begun) or if the offer is too low, would make a counter proposal;
3. Should the offer to purchase be accepted, it is now up to the buyer to produce proof to the seller (and often the estate agent) that their bond application (if required) has been successful. Alternatively, should the buyer not require a bond, they would need to provide proof of funds;
4. Once proof of funds or approval of bond has been submitted, the seller would appoint a transferring attorney (also a conveyancing attorney) to manage the transfer of ownership;

• Note: a transferring attorney is responsible for registering the property in the name of the new buyer. They will obtain FICA documents (ID and proof of residence) from the buyer and seller and then apply for the transfer duty (which is essentially tax that is levied on the value of a property sold), receipts and rates clearance certificate from the municipality in order to register the property in the buyer’s name. 

5. A bond attorney (also a conveyancer) is appointed by the bank to attend to registering the bond in the buyer’s name. This part of the process can only occur once a bond has been granted by the bank and the buyer has accepted the quote. The buyer then pays the bond attorney a fee (which differs according to the size of the bond). Once registration of the property in the buyers name has happened, the bond attorney notifies the bank of same. This will then lead to all guarantees being paid over to the transferring attorney;
6. Should an existing bond be in place i.e. the seller still has a bond over the property that is being sold, the relevant bank will appoint a cancellation attorney (also a conveyancer) to attend to the cancellation of the existing bond. To do this, the cancellation attorney will require a written request to cancel the existing bond, accompanied by a 90 Day early Settlement Notice;
7. Once transfer duty has been paid, all documents lodged by the transferring attorney at the Deeds Office and the transferring attorney accounts have been finalized (meaning proceeds have been paid over to the seller, together with any commission paid to the estate agent, if relevant), the buyer will - at that moment - become the rightful owner of the property (meaning transfer of ownership has occurred). 

• Note: The transfer, new bond and cancellation of the existing bond all occur simultaneously.

That’s the process to purchase a home – in a nutshell. But there is far more detail and intricacy involved here. We therefore advise that you seek the counsel of a suitably qualified conveyancer should you have any questions regarding the above. 

Leasing a home

Sometimes the outright purchase of a property is just not ideal. Renting or leasing one therefore becomes far more feasible.

And this lease arrangement will inevitably lead to a contract – the lease agreement. 

A lease agreement is a signed, formal agreement (as per usual) between one person – the person giving the use and enjoyment of the property known as the “landlord” to another person, known as the “tenant”. The lease will usually be for a specific period of time in return for the payment of rent (by the tenant). 

A written lease agreement is not a formal requirement. However, should a dispute arise regarding the terms of a verbal lease, it may be difficult to prove what exactly what was agreed to. We therefore advise that a lease agreement be reduced to writing and signed by both the landlord and the tenant. 

As with the contract of sale (mentioned above), a written, formal lease should contain the following information – 

1. Detailed information about both the landlord and the tenant, for example – each party’s full name, ID number, physical address and contact numbers;
2. The physical address of the property being leased;
3. A detailed description of the property;
4. The amount of rent being charged together with any and all other charges that may be charged in addition to rent, for example water, power and utilities as well as garden maintenance charges or monthly maintenance charges;
5. Details around the number of occupants that will reside in the leased property;
6. Details around the period of lease, and
7. Details regarding penalties that may apply should the tenant fail to pay rent in the agreed amount or on the agreed day as well as if the tenant terminates the lease prematurely. 

Should you require assistance with the sale or purchase of your property or if you are looking to lease one – ensuring everything is not only “above board” but runs smoothly, get in touch with one of our suitably qualified attorneys – we are more than happy to assist and support you as you embark on purchasing a property, selling a property or even leasing one. 

With that, we wish you all the absolute best with all the “newness” coming your way – if it is. May 2023 be an exciting year filled with many prosperous undertakings. Remember, when one door closes another one is sure to open, and with it, so much excitement and joy. So, embrace all the journeys you are about to embark on. 

As Dr. Seuss said - 

“You’re off to great places! Today is your day! Your mountain is waiting, So get on your way!”

And we are here to help and support you as you do!

If you have any questions on the information we have set out above or have a personal issue which you want to discuss with a suitably qualified legal professional, please don’t hesitate to contact us at NVDB Attorneys. 

We are a law firm that considers honesty to be core to our business. We are a law firm that will provide you with clear advice and smart strategies - always keeping your best interests at heart.