The Waterfall project is a massive tract of land in excess of 2,000 hectares controlled by the Waterfall Islamic Institute, and governed by Waqf laws, which means that it can never be sold. CDH's Real Estate experts did an enormous amount of research and work to come up with a restructured long-term lease of 99 years, which does not contravene Waqf laws. In terms of the restructured long-term lease, in the event of a "resale" of the lease, the new lessee acquires the rights under the lease for a full 99 years. This differed from previous 99-year lease mortgage products in which the new lessee would have assumed the rights only for the remaining number of years.
Our leading property lawyers convinced major banks about the innovative structure of the Waterfall development, particularly that the lease agreement, or rather rights in terms of South African law under a long-term lease, are regarded as equal on all property, and are capable of being mortgaged. Importantly, the agreement remained one of lease between lessor and lessee and did not involve a deed of transfer. To safeguard the bank's security, our legal experts made special provision in the lease agreement that it would be almost impossible to cancel unless the Waqf laws were contravened. The end result is that the legal status of a lease was retained, codifying the relationship between the landowner, the holder of the leasehold rights, and the mortgage financier who passed a bond over such leasehold rights, making it as close to ownership as possible.
Director in CDH's Real Estate practice, Attie Pretorius was on the panel of experts who attended to the drafting of the initial agreements pertaining to the structure of this development. While John Webber, the National Practice Head in the firm's Real Estate practice, was intricately involved in the drafting of the end-user lease agreements relating to the commercial and residential properties which formed part of the Waterfall development. John Webber was also instrumental in approaching all of the major banks and financial institutions so to obtain their comments in respect of the lease structure. This was a crucial step in creating bankable leased land.
Our Real Estate practice was instructed to exclusively attend to the co-ordination, execution, and registration of all the initial (and often the subsequent) residential and commercial leases in the Waterfall Development. To date, we have registered approximately 2300 leases.
In 2014, The African Legal Awards honoured Attie and his team by naming them Real Estate Team of the Year for their work and innovation in the Waterfall Development.