Why does the buyer have 24 hours to substitute himself for a new buyer

Lake Properties                       Lake Properties

Lake Properties                      Lake Properties  

Let’s go deeper, because substitution clauses and cessions of rights are similar in purpose (changing the buyer) but legally very different in how they work.

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1. 🔄 Substitution Clause (usually with 24 hours)

📌 How it works:

• Written into the Offer to Purchase (OTP).
• Buyer signs as “Purchaser”, but the clause allows them to nominate/substitute another party within a set time (commonly 24–48 hours).
• If they exercise that right, the substituted party is treated as if they were the original buyer from day one.

✅ Advantages:

• No fresh contract — the substituted buyer simply steps in under the same OTP.
• Direct transfer — property goes straight from seller to the substituted buyer.
• No double transfer duty — SARS sees only one buyer.
• Clean process — no extra agreements beyond the written notice of substitution.

❌ Limitations:

• Must be done within the time stated (often 24 hours).
• If missed, the original buyer remains locked in as the purchaser.
• Substitution is only valid if the clause exists in the OTP. Without it, the buyer cannot substitute directly.

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2. 📜 Cession of Rights (used after the 24 hours lapse)

📌 How it works:

• Buyer has already become the contracting purchaser under the OTP.
• If they now want another person/company to take over, they must sign a cession agreement with that person, and the seller must give written consent.
• The new party takes over the buyer’s rights and obligations under the OTP.

✅ Advantages:

• Can be done after the 24-hour period, sometimes weeks or months later (as long as transfer hasn’t been registered).
• Still allows the new buyer to get direct transfer from the seller (avoiding a double transfer).

❌ Limitations:

• Needs seller consent — the seller can refuse.
• Usually involves extra legal costs (the conveyancer must draft and register the cession).
• If not properly handled, SARS could treat it as two transactions (possible risk of double duty).

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3. 📌 Key Differences

Feature	Substitution Clause	Cession of Rights
Where it comes from	Written in OTP	Separate agreement drafted later
Timing	Usually must be exercised within 24–48 hrs	Can be done any time before transfer
Consent needed	Only buyer’s written nomination required	Seller’s written consent required
Costs	Minimal (just substitution notice)	Additional legal costs
Transfer duty	Paid once (clean)	Paid once if properly handled; risk of double duty if not

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4. ⚖️ Why the 24 Hours?

• It forces the buyer to decide quickly whether they’re purchasing personally or through another entity (company, trust, spouse, etc.).
• Prevents the seller from being left in limbo.
• After that, substitution becomes more complicated and shifts into cession territory, which protects the seller but costs the buyer more.

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✅ In summary:

• The substitution clause (24 hours) is a quick, contractual right built into the OTP.
• If you miss it, you can still do a cession of rights, but it’s more complex, needs seller consent

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What are the tax implications of having a large property portfolio,when you consider selling in South Africa

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Lake Properties                     Lake Properties

Selling a large property portfolio in South Africa has several tax implications, including Capital Gains Tax (CGT), Value-Added Tax (VAT), Transfer Duty, and possible Income Tax depending on how the properties are held and used. Here’s a breakdown:

1. Capital Gains Tax (CGT)

• When selling a property, the profit (capital gain) is subject to CGT.
• For individuals, 40% of the capital gain is included in taxable income, taxed at your marginal income tax rate (up to 18% effective CGT).
• For companies, 80% of the capital gain is included, taxed at a 27% corporate tax rate (effective 21.6% CGT).
• Trusts also have an 80% inclusion rate, but if the gain is distributed to beneficiaries, they are taxed at their personal CGT rate.

2. VAT vs. Transfer Duty

• If the seller is VAT-registered and the properties were part of a rental business, VAT at 15% may apply instead of CGT.
• If VAT is charged, the buyer does not pay transfer duty.
• If VAT does not apply, transfer duty is paid by the buyer (progressive rate up to 13%).

3. Income Tax Considerations

• If you are a property developer or regularly buy and sell properties, SARS may classify the sales as income, not capital gains.
• This means the profit would be taxed at your marginal income tax rate (up to 45%) instead of CGT rates.

4. Estate Duty Considerations

• If you hold properties personally and pass away, they may be subject to Estate Duty (20%–25%). Holding them in a company or trust may help with estate planning.

5. Other Costs & Strategies

• Selling in phases could reduce your tax burden by spreading CGT over multiple years.
• Selling shares in a property-holding company instead of the properties themselves could reduce tax in some cases.
• Using Section 42 of the Income Tax Act may allow a tax-free asset-for-share transfer in certain cases.

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