Category: Development

8HA PRIME INDUSTRIAL LAND SOLD TO INTERNATIONAL PROPERTY FUND

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The new owner will develop an A-Grade Industrial Park further uplifting Blackheath Industria which has experienced a boom phase during the past 10 years.

For further information contact:

Johan Foster

083 581 8944

johan@capeindustrialproperty.co.za | www.capeindustrialproperty.co.za

unnamed (6) Asof eiendom-ontwikkelaars nie in die huidige swak ekonomiese toestande genoeg uitdagings in die gesig staar nie, is hulle, hul prokureurs en ouditeure, teen einde verlede jaar  begroet met die Appèlhof uitspraak in die saak Milnerton Estates Limited v Commissioner for the South African Revenue Service (1159/2017) [2018] ZASCA 155, wat vir hul verreikende kontantvloei uitdagings mag inhou.

In this matter the Appeal Court rejected the appeal of the appellant against its challenge of an income tax assessment by SARS requiring it to include the proceeds of the sales of a number of properties deemed to have accrued to the developer in terms of section 2(1) of the Income Tax Act in the year the agreements were signed despite the fact that transfer of the properties sold was only passed in the subsequent tax period.

Die uitspraak bevestig die beginsel neergelê in ‘n vroeëre uitspraak van die appèlhof in SIR v Silverglen Investments (Pty) Ltd 1969 (1)( SA 365 (A) dat waar ‘n ooreenkoms vir die verkoop van onroerende goed ‘n opskortende voorwaarde bevat waarvolgens oordrag van eienaarskap in die Aktekantoor vertraag word tot betaling van enige gedeelte van die koopprys, word die aankoopprys geag in die belastingjaar te val wat die ooreenkoms gesluit is ongeag die appellant se finale argument dat die laasgenoemde uitspraak regtens verkeerd was omdat artikel 24(1) van voormelde wet eintlik net van toepassing is op vaste eiendom wat op krediet terme verkoop was.

Property developers should therefore take note of this judgment and its interpretation of section 24(1) of the Act and ensure that where a sale agreement falls within the scope of this provision, they declare the income from the sale in the tax year that the agreement was concluded, even if payment of the purchase price and transfer of ownership only takes place in the following tax year.

Ontwikkelaars word aangeraai om kennis te neem van hierdie uitspraak vir hul beplanning vorentoe en veral ag te slaan op die kontantvloei implikasies daarvan met betrekking tot hul inkomstebelasting opgawes. Hul moet bewus wees dat die volle opbrengs van die verkoop in hul inkomstebelastingopgawes ingesluit moet word vir die jaar waarin die ooreenkoms onderteken is,  in gevalle waar die betaling van die koopprys opgeskort word in lyn met die feite in die onderhawige saak.  Steek gerus kers op by jou prokureur en of ouditeur om onaangename verassings vorentoe te vermy.

For an in-depth discussion of this judgement and in particular the reasoning of the judges please refer to the article in “The primacy of precedent” in PWC’s Synopsis for November / December 2018, by following the link hereunder.

https://www.pwc.co.za/en/assets/pdf/synopsis-nov-dec-2018.pdf

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Real estate stress as a group of family homes shaped as a dangerous falling ball as a symbol for a housing or house construction industry problem with 3D illustration elements.

Signing surety for another’s debts carries huge risk. Yet every day directors of property holding companies happily sign personal suretyships for their company’s (usually substantial) debts.

The problem is that it all seems so safe in the beginning. You need a bank loan to buy or develop a property, you’ve done your homework and the deal’s a good, sensible one. It’s only when things go wrong down the line that your signature on that suretyship document comes back to haunt you, and by then it’s far too late – or is it?

A recent High Court decision illustrates one of the very restricted circumstances in which you may be able to escape from the trap you signed yourself into.

The developer, the trust and the bank

  • A property developer lent some R10 million to an associate’s companies for a shopping mall development. The associate’s companies then borrowed a further R5 million from a bank, which took a R5 million mortgage bond over the one company’s property as security. And – here’s the rub – the developer also signed suretyship to the bank for the R5 million both personally and on behalf of his family trust.
  • The developer signed these suretyships believing that there was enough equity in the bonded property (valued at R12 million) to cover both the R5 million bond and another bond that he was told about of R2.7 million. What he didn’t know at the time was that there was yet another bond over the property, and this was a big bond for R15 million. Neither his associate nor the bank had told him about it.
  • Only when both of the associate’s companies failed did the developer realise that there was no equity in the property at all, with bonds totaling R22.7 million against a value of R12 million, and that the bank’s liquidation dividend would leave it with a large shortfall.
  • The bank duly sued the developer and his trust as sureties for R5.7 million (R5 million plus interest). To understand how that turned out in court we need to look at when our law will let you off the hook, and when it won’t.

When can you escape from a suretyship?

  • Our law will generally hold you to the agreements you make, and a suretyship is no exception.  You can only free yourself from it if it “was induced by fraud, duress, undue influence or mistake, whether induced by misrepresentation or otherwise”.
  • Without going into all the legal niceties (you definitely need your lawyer’s specific advice if you ever find yourself in this unhappy position) the general principle is that, where you rely on a “justified error as to the nature or contents of the [suretyship] document”, you must show that you were “misled as to the nature of the document or as to the terms which it contains by some act or omission (where there was a duty to inform) of the other contracting party.”
  • In lay terms, you have to prove that the bank either actively misrepresented, or failed to disclose, something “material” (significant or vital) to you. And where you rely on a failure to disclose something (as in this case) you have to further show that the bank had a “duty to speak” i.e. had a duty to tell you about it. That’s because our law generally requires you to be aware of what you are contracting yourself into, rather than requiring the other party to “tell all”. The exception to that is where you can prove that the other party had “exclusive knowledge” of something material and your right to know about it “would be mutually recognised by honest men in the circumstances”.
  • That’s quite a mouthful and it’s not easily proved, but in the particular circumstances of this case the developer succeeded in doing so. The Court had accepted that the developer wouldn’t have signed surety if he had been aware of the R15 million bond, and that the bank officials knew of his concern about there being enough equity in the property to cover the R5 million.  Moreover the developer hadn’t done a deeds search (which would have revealed the extra R15 million bond) because as he saw it there was a “relationship of trust” between him and the bank’s officials and he would have expected them to tell him about it.
  • Critically, the bank’s disclosure to the developer of the R2.7 million bond but not of the R15 million one led the Court to conclude that, having thus made an incomplete disclosure to the developer, “a duty arose requiring the [bank]’s officials to speak and to make a full and honest disclosure to the [developer] of the material facts in their knowledge.”

The developer and his trust are accordingly off the hook. But there’s a strong confirmation there of just how narrow your potential escape route is from a suretyship. So as always take legal advice before signing anything! 

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UntitledInnovations and special provisions that apply to sectional title apartments and town houses do not necessarily apply to homeowners’ associations.

This is according to specialist sectional title attorney and director of BBM Attorneys, Marina Constas, who said that it is important to know the difference between the two and how different regulations may or may not affect them.

“The latest buzz words in the property industry are community schemes,” she said.

“The Department of Human Settlements, currently the umbrella body for such schemes, has taken control of their regulation.

“Community schemes include sectional title complexes, homeowners’ associations, shareblock developments, retirement villages, gated estates with constitutions and social co-operatives, which now fall under Section 1 of the Community Schemes Ombud Service (CSOS),” said Constas.

Sectional Titles

While the CSOS Act covers all community schemes, sectional title stakeholders must also consider the Sectional Title Schemes Management (STSMA), where recent amendments have introduced several new innovations.

“These must be understood and embraced by the sectional title industry. However, they do not automatically relate to homeowners’ associations and other community schemes,” said Constas.

Examples include the establishment of a reserve fund and a mandatory maintenance, repair and replacement plan.

“While many trustees manage their buildings very well and have always had buffer funds, an inordinate number find themselves in financial difficulty, with buildings being run from hand to mouth each month.”

“This reserve fund aims to ensure that buildings do not fall into disrepair. A related maintenance, repair and replacement plan is another completely innovation in the STSMA. From now on, the body corporate must prepare a written maintenance, repair and replacement plan which sets out the major capital expenses within the next 10 years.”

Constas pointed out that other important STSMA amendments include the stipulation that any changes to the management or conduct rules of a sectional title scheme must be approved by the chief Ombud after the necessary resolutions have been taken.

“The duties of owners have also been changed. An owner must now notify the body corporate of any change of ownership or occupancy in his unit. In terms of insurance, trustees are now obligated to obtain valuations every three years and owners may not obtain an insurance policy in respect of damage arising from risk covered by the policy of the body corporate.

“On the financial front, the complex’s budget may now include a 10 percent discount on levies if an owner’s contributions are all paid on the due dates.

“There is no longer a reference to an accounting officer in the sectional title legislation. Consequently, all buildings, even those with 10 or less units, must be audited,” she said.

Constas adde that the new concept of executive managing agents has now been included in the rules for sectional title schemes.

“Distinguishable from an ordinary managing agent, the executive managing agent actually steps into the shoes of the trustees and is liable for any loss suffered by the body corporate as a result of not applying care and skill.

“Even pets have been revised in the STSMA legislation,” Constas said.

“Disabled residents who require an assistance dog to reside with them and accompany them on common property no longer need the formal consent of trustees.”

While the STSMA’s recent innovations do not automatically apply to homeowners’ associations, Constas notes that they may choose to adopt certain provisions from the Act.

“So, if I live in a cluster golf estate development, the maintenance, repair and replacement plan does not apply in my scheme unless the scheme has legally adopted that particular rule.

“If I live in a sectional title scheme, the managing, repair and replacement rule automatically applies,” she said.

Community Schemes

The Community Schemes Ombud Service (CSOS) Act, on the other hand, applies to all community schemes.

“The service is there to regulate, monitor and control the quality of all community scheme governance documentation and provide dispute resolution,” she said.

“Whilst the CSOS Act does not specifically talk about a compliance certificate for homeowners’ association rules, the Ombud’s office will be effecting amendments to bring the law regarding registration and rule compliance for homeowners’ associations in line with sectional title schemes.

“In the interim, the Ombud’s service is encouraging homeowners’ associations to send rules in for vetting,” Constas stated.

She added that the Ombud currently has jurisdiction to deal with any disputes in cluster schemes and notes that the Community Schemes Ombud Services levy must be paid by homeowners’ associations whether they are company registered or simply have a constitution.

Constas said that although the Ombud service faced serious challenges in its infancy, great strides have been made, with over 33 000 complexes having paid over monies. Those homeowners’ associations that have not registered with CSOS will be penalised, she said.

“Now that the Ombud’s office is gaining traction, there will be time to augment and improve the provision of services and to flesh out interesting issues in the industry, such as the Air BnB onslaught,” said Constas.


The City of Cape Town is pulling out all the stops to turn around its loss-making World Cup stadium in Green Point.

The City of Cape Town is pulling out all the stops to turn around its loss-making World Cup stadium in Green Point.

A plan to establish a new city-owned entity to manage the stadium was announced at the weekend, shortly after the city council called for comments on its plan to lease space for offices, green_point_stadiumshops, storage and parking bays at the stadium.The plan to allow for businesses to operate on non-game days was mooted two years ago when the city council asked for ideas to turn around the stadium’s fortunes.

Deputy mayor Ian Neilson said the city council wanted to lease out 1000 parking bays and 5005m² of commercial space.

“The basement parking space has been valued at about R1000 per bay per month and R500 per bay for designated retail parking,” Neilson said.

The municipality has already issued a lease for a site near the stadium on Granger Bay Boulevard, which will see construction projects valued at R600-million.

“Such a development will also support the overall commercialisation of the stadium precinct to the benefit of further investment and job creation for the people of Cape Town. The city also wishes to enhance public use of the space,” said Neilson.

The new entity, which will have the city council as its sole shareholder, will have an independent board to run its affairs.

“The municipal entity will be tasked with appointing a specialised service provider whose primary function will be the commercialisation of the stadium to increase its use and financial viability,” said Neilson.

Capetonians have until December 12 to comment on the proposed entity.

Jenny McQueen, Green Point Ratepayers Association chairman, welcomed any plans aimed at making the stadium profitable.

“We actually don’t care what they do with the stadium … as long as they can make it self-supporting and self-paying,” she said.

But she cautioned the city not to sell any more land on Green Point Common under the guise of making the stadium profitable.

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