There are a few aspects that need to be understood in the subdivision of agricultural land, including when the subdivision of inherited farmland may cause dispute. The Subdivision of Agricultural Land Act No. 70 of 1970 prescribes this operation and addresses further aspects in this Act that include the definitions surrounding, actions excluded in terms of, actions prohibited in terms of, and succession of subdivision of agricultural land.
The subdivision of agricultural land or “farmland” is regulated by the Subdivision of Agricultural Land Act No. 70 of 1970 (hereafter “the Act”) which came into operation on 2 January 1971. Baker J, in the case of Van der Bijl v Louw,stated that the Act has its purpose in preventing the situation where farming units are created which are not economical or could be described as non-viable subunits. This prevention objective is achieved in essence by the Minister of Agriculture, Land Reform, and Rural Development of South Africa, who has to give their consent before any subdivision may lawfully be effected.
Section 2 of the Act will be the topic of discussion in Part 1 of this series of articles and encompasses actions that are excluded from the application of the Act. These actions include the scenarios as follows:
Firstly, the application of the Act is excluded where any portion of agricultural land is subdivided in order to transfer a portion thereof to the State or a statutory body, or a transfer to the State or statutory body of an undivided share in the land, or the selling or granting of any right to any portion of agricultural land to the State or statutory body. The meaning of “right” in the latter scenario is defined
The Transfer Duty Act 40/1949 (“the Act”) states that transfer duty (duty) is to be levied on any property acquired by any person by way of a transaction. The Act is clear as to whom and by when the duty is to be paid. It states that the duty shall be payable by the person who acquires the property within six months of such acquisition. Should that person fail to pay the duty within the aforesaid period he/she shall be liable to a penalty at a rate of 10% per annum on the amount of the unpaid duty. It must be mentioned that the penalty is calculated for each completed month after the expiry of the six months.
It is important to therefore look at the definition of acquisition as set out in the Act. The date of acquisition is the date the transaction was entered into irrespective if the transaction was conditional or not. The date of acceptance by the seller of an Offer to Purchase will constitute the date of acquisition and will be reflected in the transfer duty receipt issued by SARS. It has been argued that should a Deed of Sale be subject to a suspensive condition the contract will only be perfected on the date of fulfilment of the suspensive condition which should then be viewed as the date of acquisition. Considering the definition hereinbefore it is improbable that this argument will be accepted by SARS. A prudent conveyancer would advise the purchaser to pay the transfer duty within the six-month period.
How does SARS determine the value on which duty shall be payable? In the event consideration is payable, for example, the purchase price, then duty will be calculated on that consideration. If no consideration is payable, for example, a donation of a property, then transfer duty shall be paid on the declared value of the property. As to the declared value, the Act defines this as the amount declared by the person who is acquiring the property. However, if SARS is of the opinion that the declared value or the consideration payable is less than the fair value of the property, it may determine the fair value of that property. Fair value is defined as the fair market value of the property as of the date of the acquisition of the property. In determining the fair value SARS shall have regard, according to the circumstances of the case, to the municipal valuation of the property and any sworn valuation furnished by the person acquiring the property.
In practice when a conveyancer applies for an assessment and SARS wishes to determine whether the consideration or declared value is in line with the fair market value, they request that the municipal valuation and occasionally two independent estate agents’ valuations be provided to them. Transfer duty is then paid on either the fair value or the consideration or the declared value, whichever is the highest. SARS wants its pound of flesh.
One should keep in mind that SARS has the right to add certain payments to the consideration payable for the acquisition of the property and assess duty on the combined amount, for example; a) any commission or fees paid by the person acquiring the property, for example, if the purchaser of a property is contractually bound to pay the estate agents commission; b) if the property has been acquired by the exercising of an option to purchase, any consideration paid by the purchaser to the seller in respect of the said option; c) any consideration paid whatsoever in respect of the property other than rent payable by the purchaser. It is therefore inadvisable to state in a contract that the purchaser, over and above the purchase price, is paying an additional amount for certain movables as SARS might view this as part of the consideration and assess duty on the combined amount.
A person acquiring a property should therefore be mindful of the above and when in doubt obtain legal advice.
Source Miller Bosman Attorney’s, Grant Hill.
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