No transfer of property will be allowed without a section 86 certificate.
On July 1, 2015 the Spatial Planning and Land Use Management Act (SPLUMA Act 16 of 2013) was enacted.
The Act in itself is seen as ‘framework legislation’ and therefore municipalities had to further develop a more detailed legislation to regulate their municipal planning function. This was done by means of developing and adopting Spatial Planning and Land Use Management by-law. The said by-law was promulgated on February 24, 2016.
The Emalahleni Local Municipality has commenced implementing this by-law and in terms of Section 86 thereof, no transfer of property will be allowed without the section 86 certificate.
The implementation of this section came into effect on May 1, 2017 as a culmination of a circular from the Deeds Office of Mpumalanga, indicating that the transfer of any property will only be accepted if it is accompanied by a Section 86 Certificate.
Section 86 of the Emalahleni Spatial Planning and Land Use Management by-law, 2016, states that a person may not apply to the Registrar of Deeds to register the transfer of a land unit, unless the Municipality has issued a certificate in terms of this section.
The municipality cannot issue a certificate to transfer a land unit in terms of any law, or in terms of this by-law, unless the following is confirmed, namely:
(a) A certificate of a conveyance confirming that funds due by the transferor in respect of land have been received;
(b) Proof of payment of any contravention penalty or proof of compliance with a directive contemplated in Chapter 9 of the by-law, has been received;
(c) Proof that the land use and buildings constructed on the land unit comply with the requirements of the land use scheme, has been received;
(d) Proof that all common property including private roads and private places originating from the subdivision, has been transferred to the owners’ association as contemplated in Schedule 5 of the by-law; and
(e) Proof that the conditions of approval for any land development application relevant to the subject property, has been complied with, said Mr Theo van Vuuren, Municipal Manager.
Since the implementation of Section 86, the Municipality has already received approximately 800 applications. The amount of applications received in such a short time was more than anticipated and due to capacity shortages, a backlog occurred in the processing of these applications.
“The municipality is currently working on solutions to eradicate all the obstacles experienced, to ensure that applications are processed within the shortest possible time. Three additional people are temporarily assisting the municipality for five days to address the backlog,” said Van Vuuren.
The Emalahleni Local Municipality has already issued approximately 250 certificates and it is anticipated that by the end of this week the first 500 applications on the register would have been assessed and certificates (whether compliant or non compliant) would have been issued.
It must be noted that all applications received are referred to the Building Control and Zoning Sections for inspections to confirm compliance as stipulated in Section 86 above, confirming that no illegal activities or building structures exist on site.
“This is a time consuming process and due to it being a new process, with the abnormal amount of applications received, council is not in a position at this stage to give a definite timeframe for the process. It is however our aim to do it in the shortest possible time,” he said.
During the last week the municipality also received enquiries about a letter that is circulating under the estate agents that indicated that all certificates already issued by the municipality have to be re-issued due to possible fraud.
It must be noted that this letter is not factually correct and is actually applicable to two transactions that were declined by the Deeds Office as it was submitted with a certificate without an official municipal stamp.
The Deeds Office consequently indicated that to prevent fraud in general, they are only accepting certificates that are originally signed with an original municipal stamp.
“The Act provides a uniform, effective and comprehensive system of spatial planning and land use management for the country as a whole,” said Ms Anna Barker, Keller Williams Operating Principal.
“When a land owner wants to sell his property, the conveyancing attorney will have to apply for a Spluma section 70 Certificate. The council will inspect the property and will issue this certificate only if they find the property is built as planned and approved by the planning department and if the use of the buildings is in accordance with the zoning of the property. The land owner will also have to be up to date will all monies due to the Municipality,” explains Ms Barker.
“In conclusion, the above requirements will have a big impact on the process of selling your property, and for this reason we suggest that prospective sellers should take a pro-active approach and assess their properties to address any unexpected pitfalls. Likewise estate agents, valuators, financial institutions and other role players should be aware of the potential impact of this new requirement and advise their clients accordingly,” said Ms Barker.
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