Though many might not be aware of it, there are three different forms of homeownership in South Africa. These include owning a home as a natural person, a company, or as a trust. Each option has its own set of pros and cons, which is why it is important to understand each option, before going ahead with the purchase.

To help buyers decide which option is best for them, NSV Attorneys explains each kind of ownership type:

Buying as a natural person

By far the most common option is to buy a home as a ‘natural person. This means that the home will be registered in your name as an individual, without representing any other legal entity. When purchasing a property as a natural person, transfer duty will be paid according to a sliding scale depending on the purchase price of the home

Below please find details of the sliding scale as referred to in the 2020 Budget Speech that stipulates the following for the period 1 March 2020 - 28 February 2021:

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For ease of reference visit our website www.nsvattorneys.co.za for our cost calculator

One benefit of purchasing as an individual, is that paying Capital Gains Tax (CGT) can be avoided, provided the property is the owner's primary residence. 

The definition of a primary residence is: ‘a property which is owned by a natural person, the owner or their spouse ordinarily resides within the property as their main residence, and it is predominantly used for domestic purposes’. 

In this case, the homeowner will be exempt of paying any CGT on the first R2m of any profit made on the sale of the property. Also, where the primary residence is sold for R2 million or less, the full capital gain will be disregarded.

The downside of this form of ownership only arises if you run your own business

As a business owner, if you run into financial trouble, you risk losing your home. Any properties you own will become prime targets to creditors who want to mitigate their losses. Another possible con is that, if the property is not your primary residence or is used for business purposes, the CGT exemption will not apply, and estate duty is payable on death.

BUYING IN THE NAME OF A COMPANY

A private company that purchases an immovable property will pay transfer duty at the same rate as a natural person. As a benefit though, when a company decides to sell the property, no transfer duty will be payable by the seller if they are registered for VAT and the property forms part of the operations for which the seller is registered. If the property was sold by a company as part of a rental portfolio or as a guest house, the deed of sale must contain certain specific provisions and may be zero-rated for VAT, which would also mean that no transfer duty or VAT is payable by the seller.

However, as a private company, it must be noted that the owners will pay comparably more CGT, which is currently at a rate of 22.4%. On the upside however, that because a company is not a person who can pass away, no estate duty is payable.

Things get slightly more complicated if someone is a shareholder of the company that owns the property. The value of the shares and the loan account are then deemed as assets in their estate and the value (as verified by the company's accountant) together with any amount owing by way of loan account, will increase the value of the estate.

Also, a 20% Dividends Tax is payable on all dividends paid to shareholders. Dividends tax is withheld from the shareholders' dividend payment by a withholding agent (either the company paying the dividend or, where a regulated intermediary is appointed).

Because the company is a separate legal entity, there is some protection afforded to shareholder's assets. While most financial institutions will insist that shareholders sign personal suretyship in respect of any loans made by the financial institution to the private company, the shareholder's assets can only be attached to cover debts incurred by the company. This allows buyers who purchase as a company some protection of their own personal assets.

BUYING IN THE NAME OF A TRUST

While the cost of starting a trust can be significant, purchasing a property through a trust has certain advantages. A trust is often used to protect the assets and ensure that the appointed beneficiaries, which are more often than not, the trust founder's children, get the benefit of using the assets if something happens to the trust founder..

A property held within a trust will not form a part of an individual's estate when they pass away, which means that the estate will benefit from not having to pay estate duties and executor fees. As a separate legal entity, the property held within the trust is also protected from being attached by creditors of the beneficiaries. All repairs and maintenance, as well as other bills such as water and rates, can be billed to the trust's account.

The main downside, is that a trust attracts the highest rate of CGT, which is currently at a rate of 36%. Another potential disadvantage could be  that the founder does not have control over the property, as the trust will be the legal owner and the trustees will have the power to administer it, much like an HOA or body corporate runs a sectional title estate.
 
FINAL ADVICE

Because of the various tax and legal implications that are applicable when selecting the right vehicle in which to purchase property, it is recommended that the purchaser should consult with a legal expert and a tax consultant to explore all consequences of each option before making their final decision.


 
                                                          NSV PROPERTY TEAM

Jack van Zyl            082 773 7076 / This email address is being protected from spambots. You need JavaScript enabled to view it.

Johan Slabber            083 454 8634 / This email address is being protected from spambots. You need JavaScript enabled to view it.

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Annerien Dykman        072 284 6263 /This email address is being protected from spambots. You need JavaScript enabled to view it.

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