AGENTS AND EASY MONEY
By Johan Muller
~Too many agents enter the business of real estate for what they perceive as easy big money, only to find out that there are huge monetary costs and a lot of work required to be successful. A realistic and modest start and plan will give you confidence to go out and make it happen.
Knowing why others have failed, and a large percentage do, will be an important factor in keeping your real estate business and plan on track. Most successful people in any business will tell you that they are successful not only because they have studied ways to be successful but that they have also studied the failures of others in order to avoid the same mistakes.
Keeping track of your personal expenses while building your real estate practice is of the utmost importance, most of your efforts in building your business will not generate income but rather generate costs and expenses and many agents have run out of development capital before they have been able to generate a sustainable stream of income. It is therefore important to budget for these expenses and ensure that you stay within this budget at all times.
Similar to expenses and an income budget can also be created with the so-called “funnel approach”. We need to determine how much needs to be fed into the top of your funnel in the way of prospects in order to generate the desired number of transactions exiting the bottom of the funnel. This also requires an analysis of your activities and marketing in order to feed the required amount of prospects into the top of the funnel. For the aforementioned you would have to differentiate in the quality of the prospects and devote your time to them accordingly, a person requiring to view a property poses a better prospect than one who visited your website and requires general information.
You need to quantify on “average” transaction and commission amounts for each transaction that exits the bottom of the funnel, this way you can determine what you need to feed at the top in order to realize your income goals from what comes out at the bottom.
AMENDMENTS TO YOUR PROPERTY HOW TO AVOID THE PITFALLS
By Corrie de Jager
Many transfers are delayed and sales even cancelled due to alterations to properties without the necessary consents and amendments to building and sectional plans being in place.
The following are some guidelines:
Study your existing Title Deed to determine:
- The position of all servitude areas and if in doubt discuss this with the building department of your local municipality
- any restrictive conditions i.e. limitations or prior consents to be obtained.
Special care need to be taken with Sectional Title schemes as a unit cannot be extended without the consent of the Body Corporate.
- This creates a lot of confusion as even in a duet (where the total scheme consists of only 2 houses) you still need to comply with the requirements of Section 24 of the Sectional Title Act.
Many houses are regulated by Home Owners Associations or Non Profit Companies and care must be taken to comply with their rules regulating improvements to properties.
Building Plans need to be approved by the local municipality in respect of all structural alterations to the property even if it only involves small alterations such as enclosing an open patio area, erecting a lapa or carport (watch out for insurance risks with your thatched lapa!)
In all sectional schemes the sectional title plans need to be amended to reflect the increased size and the participation quotas need to be adjusted. This can be a costly exercise as all bond holders of units in the scheme need to consent for alterations when your participation quota increases with more than 10%.
Although building plans and sectional plans can be approved even after the actual improvements, the biggest risks are that the town planning scheme does not allow for the additional coverage on your property being the total area (footprint) on which you may build or the floor area ratio (being the ratio of all buildings’ floor area to the size of the property) does not allow any further development which may entail rezoning at huge costs or even demolishing of the structure at even bigger costs.
Geological considerations due to dolomitic and other conditions may severely affect building activities. Please do not proceed with any alterations without obtaining all the required approvals.
ATTACKING A TRUST, AND DEFENDING IT.
SOURCE: DotNews Nov 2014
It’s an all too common scenario. When you try to recover your money from a debtor, you find that all his/her assets (including the luxury home, holiday house and ocean going yacht) are held by a family or business trust.
Creditors : Follow the Assets
- Prevention is always better than the cure. Investigate your debtor’s financial position before granting credit and take surety ships and other security from the trust and any other related entities that actually hold any of your debtor’s assets.
- Look for loan accounts and unlawful dispositions. Where assets have been transferred into a trust (or to any other third party) the transfers may be impeachable in terms of our insolvency laws. Where the asset transfers were lawful, the trust may well still owe your debt or money for their value, whether or not appropriate loan accounts are actually shown in the trust’s financial records. Such monies may then be recovered as assets in your debtor’s estate.
- Attack the trust directly. A recent High Court judgment discusses two ways of achieving this.
The Insolvent and the Properties
The trustees of an insolvent estate asked the High Court to declare those two properties, one held by a family trust and one by a company, are treated as assets in the insolvent estate.
The Court refused the application, based on the facts discussed below. However, upon analysis of the applicable law, this case provides (practical advice to both creditors (on how to attack a trust) and to the trust’s trustees (on how to protect the trust).
The Court held that one must distinguish between two very different approaches:
- Firstly, you can try to establish that a trust is a sham. A trust will be regarded a sham if, factually, the requirements for the establishment of a trust were not met, or … the appearance of having met them was a reality a dissimulation”. If it is a sham, the trust does not exist; or
- Secondly, if the trust actually exists, it isn’t a sham. You can still ask a court to go “behind the trust form” or to “pierce its veneer.” If you succeed, the court will disregard “the ordinary consequences of the trust’s existence” and can, for example, declare the trust’s assets to be assets in the trustee’s personal estate. “It is a remedy that will generally be given when the trust form is used in a dishonest or unconscionable manner in order to evade a liability, or avoid an obligation.” This remedy is likely to be present, said the Court, where “trustees treat the property of the trust as if it were their personal property and use that rust essentially as their alter ego – an all too frequent phenomenon in certain family and business trust in which the trustees are both the effective controllers as well as the beneficiaries.
Trustees : Defending your Trust
Trusts can be used legitimately both as estate planning tools and to protect assets from the risks of business failure, but only if they are structured correctly in the first place and, administered properly.
So get advice before founding a trust on how to structure it, how to construct its founding deed, which trustees to appoint, how to appoint them and how to properly manage the affairs of the trust once it has been established.
Avoid any suspicion that the trust is a sham or that it is being used for dishonest purposes or even as an alter ego for the trustees. It is very important to distinguish between control of the trust’s assets and the use and enjoyment of those assets.
Transfer Duty: Exemption up to R900 000
Effectively all transfer duty down by R4500
Our new table of costs will follow
Two new Acts are having a huge impact on persons living in Estates, Sectional Title complexes and Retirement Estates.
The Community Schemes Ombud Service Act No 9/2011 (CSOS) and the Sectional Title Schemes Management Act No 8/2011 came into operation on 7 October 2016 and are affecting all living in estates and although they provide certain benefits, they also create a financial burden on owners as ALL LEVIES INCREASED FROM JANUARY 2017.
The main purpose of these acts are to provide standard rules for Sectional Title Schemes, to pro-
mote and monitor good gov-ernance of all Schemes and to provide an Affordable Dispute Resolution service.
A. THE FINANCIAL IMPACT – INCREASED LEVIES DUE TO:
1) CSOS FEES
In order to finance the opera-tion of the Ombud service all Schemes will, from 1 Jan. 2017, have to pay a fee based upon the current levies paid by an owner. This fee is equal to 2% of the monthly levy amount with the first R500.00 exempt and with a maximum of R40.00
for levies in excess of R2 500.00 per month.
NO FEES ARE PAYABLE IF:
Your monthly levy does not exceed R500.00
Your net income is below R5 500.00 per month
The Ombud provides exemption (only in exceptional cases)
Owners of Sectional Title Units situ-ated in Home Owner controlled Estates will pay double fees based upon the levies charged by the H.O.A. and also on the levies paid for the Sectional Title Unit.
2) INSURANCE PREMIUMS
All Schemes are now obliged to take out Fidelity Insurance to cov-er the potential loss of Scheme funds resulting from fraud, theft, etc. over and above other insur-ance policies
3) RESERVE FUND PROVISIONS
All Sectional Title Schemes are to have a reserve fund equal to 25% of their total annual contributions – If the current reserve fund is below the 25% requirement, lev-ies must increase with at least 15% to make provision for this.
4) INCREASED SCOPE OF AUDIT
The Management and Auditor are tasked with more auditing re-quirements which will also lead to
B. THE ADMINISTRATIVE IM-PACT
1) All Schemes must immediately be registered with CSOS and had to provide them before 7 Jan. 2017, with all Prescribed Corporate Governance Docu-mentation. (These are substan-tial and must be kept up to date at all times)
2) All Schemes must provide CSOS with their annual returns and financial statements within 4 months from financial year end.
3) All Schemes to collect the pre-scribed fees monthly from own-ers and to pay same quarterly to CSOS from 1 January 2017.
4) All Sectional Title Schemes must in addition to fidelity insurance also insure the buildings and its assets against standard risks and take out public liability cover of at least R10 000 000.00 (TEN MILLION RAND).
5) All Sectional Title Schemes must prepare a 10 year com-prehensive repair and re-placement maintenance plan.
6) All Sectional Title Schemes must establish a reserve fund with a separate bank account and budget over and above the normal ad-ministrative fund.
7) All Sectional Title Schemes must notify CSOS, the Lo-cal Municipality and the Reg-istrar of Deeds of their domi-cile address.
C. THE LEGAL IMPACT:
1) DISPUTE RESOLUTION
Any person (including a Company/Trust/ETC) mate-rially affected by a dispute can apply to CSOS to have the dispute resolved. The costs are minimal - R50.00 for a conciliation (informal settlement) and R100.00 for adjudication (formal settlement) and no legal representation allowed (except in exceptional circumstances)
The aim is to eliminate expen-sive legal costs and to provide a quick and effective means to resolve disputes.
Disputes can cover a whole range of issues – from financial-, behavioural-, scheme-, governance-meeting-, to management issues, etc. This is a welcome benefit as persons can now get quick and cost effective adjudication of disputes at a maximum of only R150.00.
2) NEW RULES FOR SECTIONAL SCHEMES
For Sectional Titles Schemes there are far-reaching changes to the quorum-, proxy-, and meeting requirements, the value of votes, notices to persons in arrear and charges and maximum interest rates that can be collected.
Al amendments to the Sectional Title rules need to be approved by CSOS.
If a developer changes the prescribed rules to provide for a different vote/liability of owners this must be disclosed in deeds of sale before opening of the register.
3) INCREASED RESPONSIBILITY ON MANAGEMENT
Management must ensure that their actions and governance provisions are in line with the prescribed acts and rules and do not unreasonably interfere with the rights of an individual owner or occupant. Trustees and Directors of Schemes must acquant them with the provisions of these as their failure to comply can have dire consequences resulting in them being found guilty of an offence with penalties of fines and even imprisonment.
Due to the complexity of these new requirements and the huge responsibility upon Management it is advisable that Directors and Trustees consider the services of reputable established managing agents registered with the EAAB and NAMA in order to minimize their own exposure and ensure strict compliance.
BUY THAT HOUSE! YOUR OFF THE HOOK FOR THE SELLERS MUNICIPAL DEBTS : ROMAN CHAUSSE
~~~“Why should a municipality be entitled to visit the sins of a predecessor in title upon innocent third parties when there is no relationship or connection between that party and the debts in question?” (Extract from judgment below)
A recent Pretoria High Court judgment has come to the rescue of property buyers being pressured by the local munici-pality to pay the previous owner’s debts.
When you buy a property, the municipality won’t issue the seller with a “clearance certificate” – necessary for the transfer of the property to you - until all rates and taxes, water and electricity accounts etc due for the 2 years prior to transfer have been paid in full.
But there’s a problem when the seller’s debts are older than 2 years. The municipality cannot force the seller to pay those historical debts by holding back transfer.
Relax: you’re no longer the soft target
And - until this latest judgment - you were the softest target for the municipality’s debt collection department. It could cut off your electricity and water. It could threaten to have your property sold in execution. And you could end up shelling out a lot of money to settle someone else’s debts – R6,5m was claimed from one of the buyers in this matter.
If fear of that happening to you held you back from buying a house, relax - that’s all changed. Holding that “In the absence of an agreement to that effect, a new or subsequent owner ….. is not liable for the payment of historical debts incurred by previous owners or occupiers”, the Court declared the provision allowing such action by the municipality to be constitutionally in-valid. It seems likely that this will be confirmed by the Constitutional Court and adopted by all the other High Courts.
CATS VERSUS DOGS IN AN ECO ESTATE...
- By Henry van Schalkwyk
Vigorous debate has often developed in boardrooms where Home Owners Associations have met to decide if cats should be allowed on Eco Estates or not.
Estate makes provision for pets (cats and dogs) to be kept on the Estate provided the necessary infrastructure is in place to prevent them from roaming uncontrolled. With dogs the concept of containing the animal is possible but when it comes to the issue of containing a cat this arrangement is literally full of holes.
Both cats and dogs have advantages and disadvantages.
The particular environment required by these animals should guide the final decision as to which one is better to have, if any. The list below contains some of the advantages and disadvantages of both small dogs and cats.
Advantages of a small dog:
- It is possible to contain, control and/or restrict a small dog to a certain area and still be able to comply with Municipal regulations. (Municipal regulations specify that boundary fences, palisade or walls be in the region of 1,8 meters tall or less. If higher than 1,8 meters tall Municipal approval is needed.)
- Companionship in the household.
- Generally, most can be trained.
- Ease of handling by means of a leash.
- The food source provided to a small dog can be decided upon by the owner, within reason.
- The droppings of a dog are usually done in plain sight and can easily be seen and cleaned up by the owner.
- Dog food is cheaper than cat food per weight.
- Some dogs will defend the property against intruders or be an alarm system.
Advantages of a cat:
• As with small dogs, cats are considered companions within the household.
• Can be trained to a certain extent.
• Cats are considered independent and do not require full time attention or looking after.
• Keep household rodents at bay.
Disadvantages of a cat:
- Cannot be contained and controlled at all times. Even Municipal standards with regard to fencing, walls, palisade, etc. will not restrict the movement of a cat.
- The instinct to hunt and kill is something cats are born with and they will develop and pursue this instinct until the day they die. This instinct is more prevalent at night, but can also be observed during the day.
- This instinct could include and affect different kinds of wildlife such as hares, both baby and adult mongooses, tree squirrels, bush babies, chameleons, nocturnal birds (dikkop, plovers, nightjars and owls) and daytime bird species (doves, forktail drongo, kingfishers, thrush species, shrikes, bulbuls, barbets, whydahs), small mammals and even some lizard species. Even cats that are well fed will practice the art of stalking and killing.
- The locations where cats have defecated and urinated are not always easily observed unless you really know what to look for but the strong smell that goes along with this activity is unmistakably real.
- Sexual activities and male confrontations usually happen at night and this will contribute to the noise factor, often large distances from where its home is.
- Male cats will often urinate on floors, tables and furniture to mark their territory.
- Cat food is more expensive than dog food per weight.
- Cats will often claw on furniture, wooden structures, bedding and carpets.
- Cats need veterinary care. Cats are natural vectors for rabies and can host a variety of other diseases and parasites including toxoplasmosis, hookworms, feline immunodeficiency virus, and feline infectious peritonitis.
The pros and cons of having a small dog or a cat are relatively even and good arguments can support both sides of the coin when it comes to the best pet to keep. However, from an environmental point of view cats are hard to control and contain, regardless of how tame they are and their instinct to hunt and kill has a negative impact on the wildlife and birds in the surrounding areas. Domestic cats are highly skilled predators, and studies have shown that even when fed daily by humans, cats will continue to hunt wildlife.
The statistics in areas where wildlife is abundant have shown that the diet of the ordinary house cat can consist of the following: 60 % small mammals; 20 % birds; 10 % various reptile species and the remaining 10 % is ordinary cat food supplied by the owner.
The natural predators for domestic cats in a wildlife environment consist of brown hyena, jackal, caracal and the African python. If these predatory animals are not present in a particular wildlife environment, the species depletion caused by the domestic cat will continue uninterrupted.
The biggest impact a dog will have from an environmental point of view is the droppings often seen all over and the noise aspect that could be prominent, however all of this could be controlled in some way or another. From an environmental point of view the destruction caused by a small dog cannot be compared to that of a domestic cat.
CONTRACTS LEAVE NO SHADOW OF A DOUBT
-Kim de Jager
Contracts should always contain a “non-variation” clause providing that no variation of the agreement is of any force or effect unless it is in writing and is signed by all parties.
A recent High Court case resulting from a property dispute shows why.
Landlord v Tenant: The restaurant that fell on hard times ...
- A restaurant owner, who rented premises in terms of a lease agreement containing a standard non-variation clause, fell on hard times and ran up rental arrears.
- The landlord cancelled the lease and gave written notice to the tenant to vacate the premises.
- When the tenant refused to vacate, the landlord asked the Court for an eviction order.
- The tenant’s defence was that it had verbally agreed with the landlord to pay a reduced rent-al (set at 25% of daily takings), that it had complied with this alleged “compromise agreement”, and that it should not therefore be evicted. It argued (citing public policy considerations amongst other legal principles) that an oral agreement should suffice in the particular circumstances.
... and the certainty principle
- But to no avail. Commenting that when parties to a contract impose restrictions on their own powers to vary the con-tract “they do so to achieve certainty and avoid later disputes”, the Court granted the eviction order and gave the tenant 5 days to vacate the premises.
Protect your position
- A non-variation clause, worded correctly to suit your particular needs, is essential. Without it, you could end up arguing endlessly (and ex-pensively) in a succession of courts about who agreed what, with whom, and when.
- Comply strictly with the clause, no matter how great the temptation may be to accept verbal undertakings and agreements from the other party. This is a case where compliance with formalities is essential.
- Even if by some mischance your agreement allows verbal amendment or cancellation, still reduce everything to writing to avoid uncertainty and dispute down the line.
P.S. Beware electronic amendment!
Next month we’ll look at a related danger – that of inadvertently concluding, amending and/or can-celling agreements by email or other electronic messaging, which can amount to both “written” and “signed” agreement.
DISCONNECTION OF ELECTRICITY SERVICES WHERE TENANTS DO NOT PAY, IS IT A POSSIBLE WEAPON OF DEFENCE?? - JOHAN MULLER
Disconnection of electricity services where tenants do not pay, is it a possible weapon of defence?
The question is frequently raised what the obligations of a property owner and the municipality are in a situation where a property owner has requested the municipality to disconnect services (electricity and/or water supply) to the property.
The aforementioned is typically only controversial in circumstances where the owner is not the occupier of the property at the time of the request and it is therefore imperative to distinguish between two possible scenarios :
• Where the property is occupied by a tenant
• The property is occupied unlawfully by squatters
If the occupier is lawfully occupying the property then the Rental Housing Act 50 van 1999 will apply. This Act provides in the regulations promulgated thereto, that it is unlawful for a landlord to restrict or terminate the supply of services such as electricity and water to the property without a Court Order.
It is further important to remember that this only protects occupiers who are in occupation of the property by virtue of a lease agreement and thus with the consent of the owner.
The next important piece of legislation that needs to be considered is the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) protecting all occupiers regarding whether the occupier is there lawfully or not. In other words, should the occupier be an illegal squatter the Act provides that a person cannot be evicted without an Order of Court and involves a lengthy and costly procedure to evict the tenant from a property.
It is important to remember that PIE does not deal at all with the obligations of a landlord to supply services to a property nor does it deal in any shape or form with the disconnection of those services. This is because the disconnection of services to a property is already regulated by the Rental Housing Act and the common law.
The common law provides that if a property owner or any other person unlawfully disconnects the supply of services to a property, that this is unlawful and constitutes spoliation and will entitle the occupier to obtain a Court Order to restore the supply of services to the property immediately.
Important legal considerations :
• If the occupier has a lease there is a contractual relationship between the occupier and the landlord if the occupier is not in the property with the landlord’s consent, or where such consent has been duly cancelled due to the occupier’s breach or failure to remedy such breach, there is no contractual relationship between the occupier and the landlord;
• There will always be a contractual relationship between the owner and the municipality especially in those instances where the municipalities now require that the supply of services need to be in the name of the registered owner of the property and not the tenant;
• In terms of certain by-laws it is equally important to note that owners and occupiers of property can be held jointly and severally liable for each other’s debt owning to the municipality regardless in whose name the account was held when the debt was incurred.
1. There is no contractual, statutory or constitutional obligation on an owner to provide services to unlawful occupiers.
lease is in place and this obligation is obligated by the Rental Housing Act,
stipulating that services to a rented property cannot be terminated without
the occupiers consent or an Order of Court.
3. A property owner is not obliged by statute or any other law to shoulder the municipality’s burden of supplying free municipality services to occupiers.
4. It is apparent that a property owner wanting to disconnect services to a residential property where a lease is in place, must first obtain a Court Order lest the action will be unlawful in terms of the common law and the Rental Housing Act.
5. The aforementioned situation does however not apply where is there is no contractual relationship between the owner and the occupiers exist or such agreement has been rightfully terminated.
6. There exists no statutory, constitutional or contractual responsibility on an owner to provide services to an occupier occupying the premises without the consent of the owner and this failure to provide these services can therefore not be unlawful which is a basic requirement for an application for spoliation.
The Zelpy Case
In the aforementioned which is still a matter that sub-judice the property owner requested that the supply of services to a property that was unlawfully occupied, be disconnected and the owner has proof that the request was made and received by officials of the municipality.
Despite the owner’s best efforts over a period of 4 years, the municipality failed or refused to disconnect the supply of services to the property and the owner has launched a Court application to compel the municipality to disconnect the supply of electricity and to restrict the water to the property to 6 kilolitres per month which in terms of the by-laws is the amount of free water that a household is entitled to.
The municipality’s main defence was that the request to disconnect the services to the property constituted “eviction by the back door” and that the owner as doing nothing more than attempting to evict the occupiers without an Order of Court which would amount to an illegal eviction in terms of PIE, irrespective of the fact that PIE does not deal at all with the disconnection of services to a property.
DISPUTE RESOLUTION BETWEEN THE BODY CORPORATE OF A SECTIONAL TITLE SCHEME AND THE OWNER
- Johan Muller
A lot of uncertainty exists as to how a dispute between the registered owner of a Sectional Title unit and the Body Corporate and/or Board of Trustees should be approached and resolved.
The answer to this question can be found in Management Rule No 71, which forms part of Annexure 8 of the Sectional Titles Act 95 of 1986.
Any dispute between the Body Corporate and an owner or between owners per se, arising out of, or in connection with, the Sectional Titles Act, the Management and Conduct Rules, may be addressed and resolved in terms of Rule No 71.
If a dispute arises, the aggrieved party should notify all other interested parties of such dispute in writing. Copies of such notification should be served on the Trustees and Managing Agents.
Should this dispute not be resolved amicably within 14 days of such notice, either of the parties may demand that such a dispute or complaint be referred for Arbitration.
Having regard to the nature and complexity of the dispute or complaint as well as the costs that may be incurred in the adjudication thereof, the parties may appoint an Arbiter. The Arbiter should be independent, suitably experienced and qualified.
The parties involved have the right to agree upon the Arbiter to be appointed.
Should the parties not be able to agree upon the Arbiter appointed, within 3 days of such appointment being requested, the Registrar of Deeds in which the Scheme was registered, shall, upon written application, appoint an Arbiter. He shall do this within 7 days of receiving such application.
Arbitration shall be held informally or otherwise, as determined by the Arbiter. The Arbiter shall have the right to demand that the party calling for the Arbitration furnish the Arbiter with security of payment for the costs of arbitration. The Arbiter shall then make his award within 7 days of completion of the Arbitration, based on the principles laid down in terms of these rules.
The decision by the Arbiter shall be final and binding and may be made an order of the High Court upon application of any party affected by such Arbitration.
Although the aforementioned procedure is prescribed, it is not compulsory as was found by the Supreme Court of Appeal in the case of Body Corporate of Pinewood Park vs Dellis (Pty) Ltd (2013 (1) SA 296 SCA). In this matter the Court found that such arbitration is not compulsory and that an aggravated party need not utilize arbitration but can still take the matter to court as a Forum of First Insane.
The advantage of arbitration however, is that it is more accessible. Bear in mind that the South African courts are very congested and in many instances this route will be much cheaper as it involves the cost of only one Arbiter instead of different legal terms.
Do assets of a family trust form part of the assets of the joint estate of spouses married in community of property
Do assets of a family trust form part of the assets of the joint estate of spouses married in community of property
By Johan Muller
Many buyers are enticed to purchase property in the name of a family trust in order to protect such immovable property against possible claims of creditors and even spouses.
WT and Others vs KT (Supreme Court of Appeal)
WT and KT were married in community of property and lived in a house purchased by and registered in the name of WT’s Family Trust prior to their marriage. During the course of the divorce proceedings, KT instituted a counter claim alleging that she was entitled to a 50% share in the house as she claimed that WT had led her to believe that she was a beneficiary of the trust.
The High Court found that WT had administered the trust as his alter ego and that the house therefore formed part of WT’s assets, to be included in the joint estate. The trustees of the trust however took the matter on appeal during which the Court of Appeal decided :
• There as insufficient evidence proving that KT had been deceived into believing that she would be a beneficiary of the trust;
• In terms of Section 12 of the Trust Property Control Act 57 of 1988 it confirms the common law position providing that trust property does not form part of the personal property of trustee except in instances where the trustee is a beneficiary of the trust. In this regard a trustee may not use the trust a front to control the trust for his personal benefit;
• In the light of the fact that there was a separation between the control of the trust property by the trustee and the enjoyment of the trust by the beneficiaries and the fact that KT had not contracted with the trust and was not a beneficiary she therefor had no standing to challenge the administration of the trust
This decision reaffirms that property held by a trust does not form party of the personal property of its trustees and that Court’s may not grant an order stating otherwise unless there is substantial evidence to indicate that the trust is being used for improper motives by the trustees.
The aforementioned further highlights the importance of the correct formation and composition of your trust and should a trust be incorporated with the creator, trustee and beneficiary being the same person, it will create the immediate suspicion that the trust is nothing but a relevant person’s alter ego which could have tipped the scales in the aforementioned judgement should it have been the case.
EGSKEIDINGS : EGGENOOT SE BATES IN TRUST
Deur Anton Hamman
Dit gebeur gereeld dat 'n party in 'n egskeiding (gewoonlik die vrou) gekonfronteer word met die realiteit dat haar man se bates in 'n Trust of Trusts is en dat sy dan oortuig word deur haar man dat hierdie bates nie in die egskeidingsgeding val nie.
Die vraag is –
Wanneer kan bates wat in 'n Trust gehou word, bygevoeg word tot die bates van 'n gade en derhalwe deel vorm van die bates wat in die egskeiding bereken en verdeel moet word?
Dit is belangrik om te onderskei tussen 'n Testamentêre - en 'n inter vivos Trust. 'n Testamentêre Trust word in 'n persoon se testament geskep en kom eers by die dood van daardie persoon tot stand. 'n Inter vivos Trust word opgestel terwyl die oprigter en trustee nog lewe. Dit is gewoonlik laasgenoemde Trusts wat ter sprake kom in 'n egskeidingsgeding.
Die antwoord tot die vraag of trustbates by 'n egskeiding in 'n boedel val en verdeel kan word is of die Trust en Trustbates as die persoon se alter-ego gebruik en aangewend word. Met ander woorde, gebruik die persoon die Trust as 'n instrument om van tyd tot tyd of selfs daagliks sy persoonlike besigheid te doen. Omdat 'n Trust beskou word as 'n selfstandige entiteit, kan dit nie sondermeer gebruik word vir persoonlike sake nie.
Die beste beskrywing van hierdie beginsel word gevind in die handboek South African Law of Trusts waar Regter Cameron dit duidelik stel: “a trust is a legal institution where a trustee administers property separately from his or her own property. It is this “separation” requirement that leads to the most cases of abuse of the trust instrument”.
Wanneer daar nie hierdie “separation” is nie, word die trust as 'n alter-ego gebruik en sal die bates in die trust waarskynlik by 'n egskeiding wel in die boedel val om in berekening gebring te word in die egskeidingsgeding. Regter Stafford beskryf dit as volg: “In general terms, should it be proven that a party has the ultimate control of a trust, or that the trust is a creature wholly controlled by him or herself as trustees, then the trust may be treated as the alter ego of the trustee”.
Daar is in heelwat sake waar bevind is dat trustbates in die party se boedel val en verdeel moet word by die egskeiding.
Die mees relevante sake is:
Brunette v Brunette
Die Hof het hier bevind dat waar die oprigter van die trust in praktyk die bates van die trust in die trustee se hande plaas en die trustees eintlik maar net “puppets” is wat die trustbates gebruik, daardie trustbates in die boedel val.
Badenhorst v Badenhorst
Mnr en mev Badenhorst het 'n plaas gehad wat met hul eie geld aangekoop en verbeter is. Later is die plaas na 'n trust oorgemaak klaarblyklik om hulle teen skuldeisers te beskerm. By die egskeiding het die Hof beslis dat die plaas nie in die boedel van mnr. Badenhorst val nie. Die Appèlhof het egter bevind dat mnr. Badenhorst die trust as 'n voertuig vir sy besigheidsbedrywighede gebruik het en dat die bates van die trust by egskeidng in mnr. Badenhorst se boedel val vir verdeling.
Trustees moet altyd onafhanklik in hulle optrede wees en dat daar moet 'n duidelike onderskeid tussen beheer van die trustbates en die genot daarvan wees. Indien dit nie gedoen is nie, gaan die Hof heelwaarskynlik beslis dat die trust 'n alter ego van die trustee was en dat die bates van die trust wel in die partye se boedel val vir verdeling of berekening in 'n eg-skeidingsgeding.
In die verlede kon partye by huwelik maklik bates in 'n trust verskans, maar gelukkig neem howe nou hierdie bates in ag by die verdeling in geval van 'n egskeiding.
Vir verdere navrae kontak Anton by : AHamman@pta.sdj.co.za
EIENDOMSVERKOPE : JY WIL NIE N ONGEREGISTREERDE KREDIETVERSKAFFER WEES NIE!
Wanneer jy eiendom koop en verkoop moet jy sorg dra dat jy nie meer as R500,000 aan die ander party leen of geag word te geleen het nie. ‘n Onlangse saak in die Hoë Hof illustreer hoe jy in so geval jou kontraktuele eis vir die verhaling van jou geld kan verloor.
Die verkoper, die koper en die lenings
- Die koper het ‘n eiendom vir R700,000.00 gekoop, die volle koopprys betaal en ingetrek.
- Hierna het dit egter aan die lig gekom dat ‘n bedrag nog aan die verbandhouer verskuldig was, as gevolg van ‘n onwettige oordrag van die eiendom aan ‘n derde party. Die koper was toe nie in staat om oordrag te neem van die eiendom nie.
- Die koper het toe drie bedrae geld, ten bedrae van R882,397.00 aan die verkoper geleen, ten einde hom in staat te stel om oordrag te gee. Die verkoper het ‘n skriftelike erkenning van die skuld geteken en ‘n bedrag van R250,000.00 is wel terugbetaal.
- Toe geen verdere terugbetalings gemaak is nie, het die koper die verkoper gedagvaar vir die terugbetaling van die balans wat nog verskuldig was.
Die Hof beslis dat die koper se dagvaarding gebrekkig was, omdat dit nie beweer het dat die koper ‘n geregistreerde kredietverskaffer in terme van die Nasionale Kredietwet (NKW) was nie.
Volgens die Hof was dit ‘n fatale gebrek -
- Jy word deur die NKW vereis om formeel as ‘n kredietverskaffer te registreer waar -
- Jy meer as 100 lenings maak wat nie toevallige kredietooreenkomste is nie, of
- Die totale leningsbedrag meer as die vasgestelde drempel van R500,000.00 is.
- Aangesien die koper aan die verkoper ‘n bedrag geleen het wat meer as die vasgestelde drempel was, moes die koper as ‘n kredietverskaffer geregistreer het.
- Dit maak ook nie saak dat dit ‘n eenmalige lening was nie of dat die lener nie gereeld krediet verskaf het nie. As die totale leningsbedrag R500,000.00 oorskry, word registrasie vereis. Die NKW se registrasievereiste is dus nie net van toepassing op diegene wat ‘n besigheid van kredietverskaffing bedryf nie; dit is ook op jou en my in ons daaglikse lewens van toepassing.
Die gevaar vir alle leners, nie net in eiendomstransaksie nie –
Wanneer jy geld uitleen (of dit nou deel is van ‘n eiendomstransaksie of nie) en jy nie as ‘n kredietverskaffer registreer wanneer dit van jou vereis word nie, is sodanige leningsooreenkoms onwettig en nietig.
Jy kan dan jou geld slegs probeer inwin deur te dagvaar vir on-geregverdigde verryking; nie meer op die lening self nie. Hierdie aksie vir verryking het sy eiesoortige ver-eistes wat aangevoer en bewys moet word en verwere wat die skuldenaar daarteen kan opper.
Moet eerder nie in hierdie slaggat trap nie. Verkry onmiddellik regsadvies indien jou eiendomstransaksie op so ‘n manier opgestel is dat jy dalk as ‘n kredietverskaffer moet registreer. Ons sal natuurlik aanbeveel dat jy sodanige advies aanvra en verkry voordat jy enige geld uitleen.
GETTING MARRIED OVERSEAS
What happens if either -
You are getting married in another country, or one or both of you is non South African (or more correctly, is not "domiciled" in South Africa, your formal citizenship not being the issue here - see below)
Which Country's laws apply?
The answer can make a huge difference to you both. If South African law applies, you will be married in community of property unless you contract otherwise, whilst in other countries a whole host of different rules, requirements and regimes apply.
So whose law applies?
In a nutshell - the legal and property consequences of your marriage will, unless you expressly agree otherwise, be governed by the law of the country where the husband is domiciled at the time of the marriage (your "domicile" is broadly speaking your place of permanent residence, the country where you live have "the intention to settle ... for an indefinite period").
There is much room for confusion here. Determining "domicile" involves a court trying to determine mental state or "intention" - never an exact science at the best of times. Moreover, the concept that only the domicile of the "husband" should count is outdated and unlikely to survive Constitutional scrutiny for gender equality, nor it practical since it cannot be applicable to same - sex marriages.
So the only way to be really sure that both of you are protected from nasty surprises as to which laws, formalities and marital regimes will apply to you as to take advice before you marry.
A case study : Mauritian law and the wife who left with nothing :
A recent Supreme Court of Appeal decision illustrates the potential for confusion
- A Couple married in Mauritius in 1983
- A month later they moved to South Africa and the wife sued for divorce after 23 years of marriage here.
- She claimed 50% of two properties acquired during the marriage
- The High Court finding on the facts that the husband has been domiciled in South Africa at the time of the marriage and that South African Law therefore applied, granted the wife a 50% share in both properties based on the Court's conclusion that the couple had been married in community of property (the default marital regime here)
- The SCA however decided that the husband had been domiciled in Mauritius at the time of the marriage, Mauritian law therefore applied. The wife had not proved any entitlement to a share in the properties as required by Mauritian law, and her claim to a half share failed accordingly.
The wife must be regretting not having taken legal advice before her marriage.
GREAT TIMELESS TRUTHS
- In my many years I have come to a conclusion that one useless man is a shame, two is a law firm and three or more is a government. John Adam
- I contend that for a nation to try to tax itself into prosperity is like a man standing in a bucket and trying to lift himself up by the handle. Winston Churchill
- A government which robs Peter to pay Paul can always depend on the support of Paul. George Bernard Shaw
- Foreign aid might be defined as a transfer of money from poor people in rich countries to rich people in poor countries. Douglas Casey, Classmate of Bill Clinton at Georgetown University
- Giving money and power to government is like giving whiskey and car keys to teenage boys. P.J. O'Rourke, Civil Libertarian
- Government is the great fiction, through which everybody endeavors to live at the expense of everybody else. Frederic Bastiat, French economist (1801-1850)
- I don't make jokes. I just watch the government and report the facts. Will Rogers
- In general, the art of government consists of taking as much money as possible from one party of the citizens to give to the other. Voltaire (1764)
- Just because you do not take an interest in politics doesn't mean politics won't take an interest in you! Pericles (430 B.C.)
- A government big enough to give you everything you want, is strong enough to take everything you have. Thomas Jefferson
- We hang the petty thieves and appoint the great ones to public office. Aesop
- If you think health care is expensive now, wait until you see what it costs when it's free! P.J. O'Rourke
HOW WILL THE INCREASE OF THE VAT RATE EFFECT FIXED PROPERTY TRANSACTIONS?
The rate of VAT for Commercial property transactions will be the rate applicable on the date of registration of transfer of the property in the Deeds Registry or the date that any payment of the purchase price is made to the seller, whichever occurs first.
If a deposit is paid and held in trust by the transferring attorney this payment will not trigger the time of supply as it is not regarded as payment of the purchase price at that point in time and under normal circumstances remains in trust until date of transfer.
If the seller allows the purchaser to pay the purchase price over a period of time the Output Tax and Input Tax of the parties are calculated by multiplying the tax fraction at the original time of supply by the amount of each subsequent payment, as and when those payments are made.
A practical example would be as follows :
A Vendor sells a commercial building and issues a tax invoice to the purchaser on 10 January 2018. If the property will only be registered in the deeds registry after the 1st of April 2018 (the date on which the increased VAT of 15% will apply) and payment will be made by the purchaser’s bank or transferring attorney on the same date, then the time of supply will only be triggered at that later date or registration and VAT must be charged at a rate of 15%.
The question which is validly asked is whether a rate specific rule will apply if I sign a contract to buy residential property before the rate of VAT increased but payment of the purchase price and registration will only take place or on the 1st of April 2018?
The answer to the aforementioned would be that VAT will only be payable at a rate of 14% and not 15% as this rate specific rule overrides the rule as aforementioned and which applies to non-residential immovable property.
The rate specific rule applies only if :
1. You have entered into a written agreement to buy the dwelling that is a residential property before 1 April 2018;
2. Both the payment of the purchase price and the registration of the property in your name will only occur on or after 1 April 2018;
3. The VAT inclusive purchase price was determined and stated in the agreement of sale.
Residential property includes :
a. An existing dwelling together with the land on which it is erected or any other real rights associated with that property;
b. So-called plot and plan deals with a building package for a dwelling to be erected;
c. The construction of a new dwelling by any vendor carrying on a construction business.
KAN EK MY HUUREIENDOM MET SLOT EN GRENDEL BESKERM?
~~Kan ek my HUUREIENDOM met nuwe slot en grendel beskerm?
“I’ll answer him by law” (Shakespeare)
Dit kan enige eienaar tot raserny dryf. ‘n Huurder wat nie sy maandelikse huur betaal nie of wat voortdurend die ooreengekome bepalings van die huurkontrak verbreek. Die versoeking is dan sterk om die grootste slot wat jy in die hande kan kry, op jou perseel se voordeur en sommer die voorhek ook aan te bring.
MOET DIT NIE DOEN NIE!
Sodra jy die reg in eie hande neem, is jy self besig om onwettig op te tree. Dit hou in dat jy jou blootstel aan onnodige vertragings, bykomende regskostes en bes moontlik ‘n eis vir skadevergoeding.
Dit is juis wat in ‘n onlangse saak gebeur het.
Die verhuurder wat die hek gesluit het
‘n Huurder het vier aangrensende kommersiële eenhede gehuur. Na bewering het hierdie huurder –
Nie ‘n erkenning van skuld nagekom nie, waarskynlik vir agterstallige huurgeld, en
‘n gedeelte van die perseel aan ongeveer 150 mense as verblyf uitverhuur, sonder om die eienaar van die perseel se toestemming hiervoor te verkry.
Heel verstaanbaar was die eienaar glad nie hiermee tevrede nie. Die eienaar het die ingangshek met ‘n slot gesluit om die huurder en al sy onderhuurders uit te hou.
Die huurder het hom onmiddellik tot die hof gewend vir regsverligting. Om te verstaan hoe die huurder dan suksesvol kon wees, moet ons eers stilstaan by die idee van selfhelp of eiemagtige optrede.
Om reg in eie hande te neem.
Dit bly ‘n regsbeginsel dat niemand die reg in eie hande mag neem nie. Dit is deel van ons sosiale kontrak met mekaar as lede van ‘n burgerlike samelewing.
Niemand is geregtig om ‘n ander met geweld of teen sy wil of sonder toestemming van die besit van enige bate te ontneem nie, ongeag of dit ‘n roerende of onroerende bate is nie. Indien dit gebeur sal ‘n hof sondermeer en op ‘n dringende basis die besit herstel; eers later en daarna sal die hof aandag skenk aan die meriete van die dispuut of ‘n verdere ondersoek daarna gelas. (Vrye vertaling uit die uitspraak wat hierin bespreek word.)
Dit maak nie saak hoe sterk jou saak teen jou huurder is nie; die hof gaan begin deur 'n spoliasiebevel uit te reik om jou te dwing om die huurder weer toegang tot die huurperseel te gee. Op hierdie staduim ondersoek die hof nog die vraag of die huurder se okkupasie geldig of onwettig is nie; ook nie wat die partye se onderskeie regsposisies is nie. Daardie aspekte sal later deur die hof oorweeg word, wanneer jy ingevolge die reg 'n behoorlike gemotiveerde aansoek vir uitsetting van die huurder na die hof bring.
Om 'n spoliasiebevel te verkry, moet 'n huurder slegs twee goed bewys: -
1. Dat hy of sy in ingestoorde besit van die huurperseel was; en
2. Dat hy of sy van die besit ontneem was, sonder hul toestemming of sonder regsproses waar hul voldoende geleentheid gehad het om hul saak te stel.
Huurder 1, Verhuurder 0
Die hof befvind dat die huurder en sy onderhuurders fisies in beheer van die huurperseel was toe hulle deur die verhuurder uitgesluit is. Die hof beveel die verhuurder om onmiddellik die huurder en sy onderhuurders weereens onverhinderde toegang tot die huurperseel te verleen en om hulle weer in fisiese besit van die huurperseel te plaas. Dan kom die sout in die wonde – die verhuurder moet ook die huurder se regskostes betaal. Die verhuurder moet dus nou met veel ligter sakke van voor af begin met die regsprosesse van uitsetting.
Wat leer ‘n verhuurder hieruit
Ons benadruk by herhaling dat voorsorg beter is as nasorg. Maak dus seker dat die voorgenome huurder kredietwaardig en betroubaar is. Laat jou prokureur die huurkontrak saam met jou deur-gaan. Is daar ander wat vir die huurder borg kan teken?
Sorg dat jy ‘n gesonde deposito van die huurder kry voordat jy toelaat dat hy intrek. As jy goeie huurders het, pas hulle op; al beteken dit dat jy die jaarlikse verhoging terughou of temper of jou huurder op ‘n ander manier tegemoet kom.
Indien jou huurder agterstallig raak met die huurgeld of die huurkontrak op ernstige wyse verbreek, moet jy sonder versuim regshulp inroep en dadelik teen hulle optree.
MUST A RIGHT OF FIRST REFUSAL (PRE EMPTIVE RIGHT) IN RESPECT OF LAND REALLY BE IN WRITING?
MUST A RIGHT OF FIRST REFUSAL (PRE EMPTIVE RIGHT) IN RESPECT OF LAND REALLY BE IN WRITING?
In the case of Mokone vs Tassos Properties CC and Another.
Mrs Mokone (Mokone) entered into a written lease agreement with Tassos Properties CC (Tassos), from which premises Mokone conducted a liquor store. Clause 6 of the lease agreement gave Mokone a right of first refusal / pre-emption).
After the effluxion of the initial period of one year, the parties orally agreed to extend the lease for a further year and the front page of the written rental agreement was endorsed by Tassos to read “extended till 31/5/2014 monthly rent R5 500-00” and signed by one of Tassos’s representatives.
In 2010 Tassos entered into a deed of sale with Blue Canyon CC to purchase the property and the property was subsequently transferred to Blue Canyon CC. Mokone notified Tassos in writing that she was now exercising her right of pre-emption and tendered payment of the price that Blue Canyon paid for the property, when Tassos refused to accept the aforementioned, Mokone initiated action against Tassos and Blue Canyon in the High Court to set aside the sale and transfer of the property and compel a sale to her.
The High Court held that when a lease is renewed without any further terms and conditions only the terms that are incidental the lessee and lessor relationship are renewed and the terms considered collateral to the relationship are not, unless the parties indicate a clear intention to renew them as well.
Mokone was initially refused leave to appeal to the Supreme Court of Appeal and the matter was referred to the Constitutional Court who came to the following finding.
1. The common law rule that only collateral and not incidental terms are renewed unduly favors lessors and it was unreasonable to expect ordinary lay people to be able to draw a distinction between terms that are collateral and incidental;
2. Extending a lease without stipulating anything more causes all terms of the lease including terms that are collateral and incidental to the lease to be extended and confirmed the pre-emptive right of Mokone to be intact and duly executed.
Protect your identity against faceless individuals - Article from FNB
~~Protect your identity against faceless individuals - Article from FNB
Ever received an email from the head of the United Nations offering you surplus funds? Or has J. Edgar Hoover, head of the FBI (who passed away in 1972) let you know that he recovered money that belonged to you? Have you ever been informed that you won the UK lottery even though you never bought a ticket? These are just some examples of phishing, and as ridiculous as they seem, many people have fallen prey to phishers.
Phishers are looking for one thing - your identity and financial information to defraud you of your money through direct access to your bank accounts or worse, stealing your identity, leaving you with untold financial debt that cannot be reversed.
It is estimated that over 100 billion spam emails are sent each day, and over half of all Internet users receive at least one phishing email per day. The estimated cost of phishing to businesses worldwide is approximately 98 US billion dollars per year.
There are two types of Phishing - spear-phishing and mass-phishing. With mass-phishing attacks, phishing emails are sent to millions of recipients. Approximately three percent of phishing emails are opened. A mass phishing victim nets a phisher about R18,000 on average. Spear-phishing is a targeted attack on a high value asset and will net a phisher around R630,000. These amounts can differ depending on the sophistication of the phishing scam.
How are phishing scams successful?
Phishers make use of two main techniques that rely on two human responses: greed and fear.
If it sounds too good to be true, it probably is. Phishers will lure you with a promise of money or other financial gain. The catch: provide your personal and bank account details and the money or prize is yours. This one catches anyone that allows greed to override common sense.
The other strategy that Phishers employ is fear. Ever received an email from a bank or vendor advising you that if you do not respond immediately, your account will be suspended unless you update your personal and financial information immediately, either within the email or by clicking on a link that takes you to another website? The mail may look legitimate, but no bank or financial service provider can request this information via email, especially passwords or pin numbers.
If there is a problem with your account, a bank will contact you personally and ask you security questions. Always insist upon the name of the service agent, their line manager and a reference number. Also ask for a contact number - both a direct number and a number for the respective department. If you feel uneasy about the call, rather ask to call them back to verify that it is legitimate.
Since the Financial Centre Intelligence Act (FICA), no changes can be made to financial accounts without correct procedures being followed. If it seems that these are being bypassed, be suspicious. Remember, no employee of any bank can request passwords for your online profiles or your pin number - if someone claiming to work for a bank asks you for either of these, hang up!
Don't even open emails from people or addresses that you don't recognise. Opening spam mails may load malware onto your computer, which can track personal information and passwords. Rather delete any suspicious emails immediately. Make use of anti-virus software offered by your bank to protect your system as best as possible.
Just as you would never give a stranger your ID book, driver's licence, credit cards or bank cards (with PIN numbers,) and let them walk away with these items, why would you ever give a faceless individual these items via email?
STRUGGLING TO EVICT - A COMMERCIAL OCCUPANT - DONT STRESS ABOUT PIE
- Johan Muller
A recent Constitutional Court judgment highlights a fundamental difference in the legal protections afforded to two types of unlawful occupant -
- Residential occupants : Occupants residing on premises are afforded protection in terms of PIE (The Prevention of illegal Eviction from and Unlawful occupation of Land Act) with its many onerous requirements for eviction. Note that even residents of "commercial" property are covered - it is not the categorization of property that counts, but whether or not the unlawful occupier resides on it.
- "Commercial" occupants : In contrasts, "commercial" occupants ("juristic persons and persons that do not use buildings and structures as "a form of dwelling or shelter") have no such protection, and are accordingly (in principle at any rate) easier to evict.
To illustrate :
The case in question concerned a mixed - use property which was sold on an insolvency auction. The previous owners refused to vacate and the new owner asked the Court to evict two classes of unlawful occupier -
A business in the form of a vehicle service station and convenience store operating from the commercial portion of the property, and the previous owners of the property who personally resided on the residential portion.
Because the buyer had not complied with PIE, eviction was granted only for the non - residential occupants (the service station and various employees). The previous owners themselves could not be evicted without PIE compliance.
THE ANTENUPTIAL CONTRACT AND YOUR MARRIAGE
-By Roman Chausse
An Antenuptial Contract (ANC) is one of the most important documents one signs during one's lifetime. It is a contract entered into prior to the marriage with the purpose of regulating the terms and conditions of such a marriage. Most underestimate the importance and legal consequences of this document as it is not just a pre-printed form, which needs to be signed prior to the wedding day and can be amended at a later stage. This can, however, be a very costly mistake.
The ANC governs what will happen to your estate upon either death or dissolution of the marriage. A will determines how an estate devolves, but what comprises the estate is determined by an ANC. A will can be changed or revoked at any time but an ANC cannot be amended after registration.
An ANC has many advantages, but the biggest would be the fact that it protects the estate of one spouse against creditors of the other spouse.
There are three matrimonial property regimes applicable in South Africa.
The first is that of a marriage In Community of Property. This applies automatically where the parties do not conclude and register an ANC either by choice, by omission or by ignorance. All assets and liabilities of the spouses, whether acquired before or during the marriage, form part of one joint estate.
Although this is the truest form of sharing, it is commercially seldom viable as the entire joint estate is at risk of attachment by creditors, and the parties individual contractual capacities is usually limited. The parties are unable to own assets in their own name and they are jointly liable for all debts.
The effect of a marriage in community of property upon death or dissolution of the marriage is also quite severe. Should one of the parties pass away, the estate of both the deceased and surviving spouse will be wound up because it is a joint estate and this can be detrimental to the surviving spouse who can be in legal limbo for some time. Upon the death or divorce of a spouse in a joint estate, the estate is divided equally between the spouses.
As a general rule we never recommend marrying in community of property as such a system severely restricts the huge benefits of good estate planning.
A marriage in community of property can be changed to one of out of community of property by means of a court application and although this is quite a costly exercise, it is sometimes advisable to consider in order to limit risks and to protect your assets.
The second matrimonial property regime is Out of Community of Property with the exclusion of the Accrual System. This is achieved by concluding an ANC. Each party has, and maintains, a completely separate estate.
Each spouse retains absolute independence of their contractual capacity and each party's assets are protected against the claims of the other party's creditors. Each party is liable for their own debt and there is no provision for sharing upon death or dissolution of the marriage.
This is a recommended regime for second marriages or where the parties have sizable estates.
The last property regime is that of Out of Community of Property with the inclusion of the Accrual System. This system was devised in order to facilitate a form of sharing whilst each party retains their own separate estates and their contractual independence. The parties may accumulate assets and incur liability without the assistance or inference from the other party. A commencement value, at the time of marriage for each party, is recorded in the ANC and upon dis-solution of the marriage, the end values are compared.
An easy way to explain this regime is that the value of the smaller estate is subtracted from the value of the larger estate, the difference is split, and the party having the larger estate pays half of the difference between the two estates to the party with the smaller estate.
It is also possible to provide for exclusions of certain assets from the sharing in the ANC. Anything not excluded, and which is in the estate of either of the parties at date of dissolution, whenever it was acquired, is included in the calculation of the estate of the party who owns it or owes it.
An ANC must be signed prior to the conclusion of the marriage and in the presence of a notary and two competent witnesses. The notary will then register the contract in the deeds office. Please ensure that your visit your attorney before your marriage.
If you are already married in community of property we can assist you in converting your marriage to one out of community by means of an appropriate court order and by entering into a post nuptial contract.
THE BASIC PRINCIPLES OF EVICTION APPLICATIONS IN RESPECT OF RESIDENTIAL PROPERTIES
~ By Wikus de Wet (LLB)
This article is aimed at shedding light on some of the practical difficulties relating to the issue of evictions and, in particular, residential evictions. Landlords and/or owners face these dilemmas every day and are often unsure about the procedure to be followed in evicting a tenant.
The most common reason for evicting a tenant is the non-payment of rent. Other reasons may include damage to the leased property, utilization of the property other than residential purposes, or a breach of any of the essential terms and conditions of the lease agreement (assuming there is a written lease agreement between the parties).
Lessors must take note of the correct steps to follow should a lessee be in breach of their lease agreement and for evicting such lessee. It is equally important for a lessor to know which actions NOT to take under such circumstances.
It is not only the owner of the property that has the necessary locus standi to institute eviction proceedings, but also a person in charge of the property and acting on behalf of the owner.
The first step in the eviction process is to determine whether there is a valid written lease agreement and, if so, to proceed to cancel it strictly in accordance with the relevant provisions of the agreement. Most lease agreements have clear provisions relating to cancellation and landlords should send these cancellation notices in writing to the lessee's chosen domicilium. Apart from the lessor's intention to cancel the agreement, the notice must also refer to the kind of breach committed by the lessee and afford the latter the opportunity to rectify his/her breach.
In the case where there is no mention of a cancellation period, Section 14 of the Consumer Protection Act 68 of 2008 prescribes the minimum of 20 days’ notice if it is a fixed term lease agreement.
Once the notice has been sent to the lessee and the cancellation period has lapsed, it would be wise to send an additional notice to the lessee confirming cancellation of the lease. Only now can the lessee be considered an "unlawful occupier" in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (also known as the PIE Act). Once the former lessee has become an "unlawful occupier", there is no duty upon the lessor to further tolerate his presence on the property and the lessor can indeed demand that the property be vacated immediately.
If the occupier of the property is still adamant on staying put, the eviction process can be instituted and the attorney will also sue for arrears in rent together with the costs of the eviction application.
A landlord or owner must NOT, under any circumstances, even though the former lessee may be occupying the premises unlawfully, attempt to change the locks to the property or in any way prevent access thereto. This constitutes an act of spoliation and the lessee is likely to regain access to the property by way of an urgent court application. The lessor will face a substantial court order against him.
The same applies to the disconnection of electricity. The whole aim of the PIE Act is to prevent illegal evictions and lessors who do not follow the proper procedure run the risk of acting in contravention of the PIE Act. They do so at their own peril.
A question often asked, is the duration of eviction proceedings if the occupant does not oppose the eviction order. Taking into account a one month's cancellation period, as well as the probability that the court roll is usually set to approximately two months in advance, and given that the occupant needs to have at least 14 days’ notice of the court date, in terms of Section 4(2) of the PIE Act, three months would be a realistic estimation for obtaining an eviction order. This does however not apply where exceptional or unusual circumstances prevail and where sufficient cause is shown for an urgent eviction.
Should the occupant however, oppose an eviction or an application, the duration of the process will be adversely affected as the matter will be postponed to allow the occupant an opportunity to state his/her defense. A vast number of possible defenses can be raised from the contract itself or even refer to external circumstances, falling outside the ambit (scope, extent) of the lease agreement. In our constitutional era, Section 26 of the Constitution of the Republic of South Africa, 108 of 1996 considers it a drastic step to deprive someone of their home. Section 4 of the PIE ACT goes even further and states that the court is obliged to further consider all relevant circumstances before authorizing an eviction order.
Such circumstances could include, inter alia, if the premises had been occupied in excess of six months, the presence of persons with special needs on the property such as the elderly, children or disabled persons, and the availability of alternative accommodation to name just a few. An eviction order will only be granted once a court is satisfied that all relevant circumstances have been placed before it (see Port Elizabeth Municipality vs Various Occupiers 2005 (1) SA 217 CC)). It would therefore be advantageous for lessors to mention all these facts in order to convince a court that an eviction order is just and equitable.
THE CONSEQUENCE OF NOT MAKE DILIGENT BOND PAYMENTS AFTER SALE OF THE IMMOVABLE PROPERTY CONCERNED - JOHAN MULLER
The consequence of not make diligent bond payments after sale of the immovable property concerned.
There are certain pitfalls that may arise from the situation when a home owner stops making his/her monthly repayments after they have entered into an agreement of sale in respect of the mortgage property.
First Rand Bank vs Soni
Mrs Soni bought immovable property. She paid the purchase price obtaining a loan which loan was secured by the registration of a bond in favour of First Rand Bank which bond was registered simultaneously with the transfer. Mrs Soni subsequently sold the property and entered into an agreement of sale.
Upon receipt of the agreement of sale the transferring attorney requested cancellation figures from FNB’s cancelation department and the bank subsequently appointed bond cancellation attorneys to attend to the cancellation on their behalf in the course of the transfer.
At that stage Mrs Soni’s account with FNB was in arrears and FNB considered that its security was at risk and instructed attorneys to issue summons against Mrs Soni based on her default. There was thus a situation where the bank in the same month issued two conflicted instructions, first the one department instructed conveyancers to cancel the bond and the other department instructed litigation attorneys to take legal actions in respect of the arrears of the bond.
Mrs Soni defended the action on two grounds :
• She alleges that she was never notified of the alleged breach nor requested to remedy the breach;
• She argued that FNB condoned the alleged breach when the fixed the amount owing at a certain amount when issuing the cancellation figures and that FNB had been aware that the property had been sold and upon transfer and cancellation of the bond, payment of the outstanding amount would be made to them;
• FNB never advised her to continue make her monthly payment after she had told them that she had entered into an agreement to sell the property.
During the judgment it was found that Mrs Soni was not entitled to receive formal notice to remedy her default and that the relevant clause in the bond clearly stated that in the event of default all amounts whatsoever owed to the bank shall become payable in full and the bank may institute proceedings for the recovery thereof and for an order declaring the mortgaged property executable.
The aforementioned judgment confirms that it is not necessary to send a letter of demand to a creditor where the parties have contracted that money should be paid on certain date and the fixing of the time of performance is in itself sufficient to automatic default if performance is not made within the stipulated time.
This judgment is a useful reminder to remain aware of the seller’s obligations even after the sale of property towards the bond holder. A seller should never assume that it is in order to stop making the loan repayments to the bank even though the property is in the process of transfer and the bond in the process of cancellation, especially in those instances where the seller is in arrears with his mortgage loan repayments.
THE EFFECT OF INSOLVENCY OF THE SELLER AFTER SALE BUT PRIOR TO TRANSFER : JOHAN MULLER
In the current economic climate the insolvency of many property owners have become a more frequent phenomenon than in the past. The question in law as to whether a seller is entitled to proceed with transfer of his immovable property in the event where his estate has been sequestrated after sale but before transfer has become a very relevant question.
Relebipi Properties CC vs De Wet and Others
The aforementioned question was specifically raised as it is a well-known fact that an insolvent person or entity loses control over his assets on the date of his sequestration or liquidation as the management and control of these assets are transferred to the Trustee of the Insolvent Estate.
According to the law as it stands, a purchaser who bought land under certain conditions runs the risk of losing both the land and the money that he may have paid, in the event that the estate of the registered owner is sequestrated or liquidated and as there is no legislative provision, neither in the Insolvency Act nor the Companies Act that deals with sequestration or liquidations and providing for such a situation and therefore we can only refer back to the common law in existence.
As far as the common law is concerned, should the estate of the seller of an immovable property be sequestrated or liquidated after sale, but before transfer of the property is passed to the purchaser, the property vests in the Liquidator / Trustee of the seller’s insolvent estate and in so far as the purchaser have fully or partially performed in terms of the agreement of sale concluded prior to the insolvency by payment of the whole or a portion of the purchase price, the purchaser is merely in a position of a creditor with a concurrent claim against the insolvent estate (Glen Anil Finance Pty Ltd vs Joint Liquidators Glen Anil Development Corporation (in liquidation)).
Insolvency however does not automatically terminate a partly performed contract and whether or not the contract continues to operate, depends on the decision and/or discretion of the trustee and although he will be responsible towards the creditors of the insolvent estate regarding his choice, the decision is his alone. The only requirement is that the decision should be made within a reasonable time and should he decide not to proceed with the contract, the purchaser is left with nothing more than a concurrent claim against the estate entitling him to share in the distribution of its free residue and should the Trustee proceed with the pending agreement, the transfer will be provided by the Trustee of the insolvent estate and not the registered owner as the registered owner has lost his contractual capability to that of the Trustee on date of his final sequestration of liquidation.
THE GOLF ESTATE RULES THAT SENT A ST BERNARD TO THE DOGHOUSE
"To his dog, every man is Napoleon, hence the constant popularity of dogs" (Aldous Huxley)
Living in a residential estate means submitting yourself to all rules and regulations lawfully imposed by the Estate's management on residents. A recent High Court judgement illustrates.
It's a Dog's Life.
- Theodore, a large St Bernard dog, is owned by long - time residents of a Golf Estate.
- One of the Estate's Conduct rules dealing with the keeping of pets- and motivated no doubt at least in part by the Estate's status as a nature conservancy - bans cats altogether and restricts dogs to breeds neither aggressive nor large (20kg or over when mature).
- Since mature St Bernards weigh in at 55 - 80 kg, Theodore's owners were refused the required written permission to keep him on the estate.
- They asked the High Court to overrule this refusal, arguing that management has a discretion to allow a deviation from the rules.
- The Court disagreed, holding that the rules are worded in such a way as to bind management to strict enforcement of the stated restrictions (other than a "truly exceptional" case such as a guide dog for the blind).
- Nor, held the Court, is it relevant that there are other large dogs already on the estate dating from a historical period of lax enforcement of the rules. Firstly, failure to enforce a breach of contract by one owner has no bearing on a breach by another owner. Secondly, whilst management did not sanction the presence of these other dogs it had been given legal advice to the effect that it would not succeed in any application for a court order removing them. (which highlights a particular danger for management associates)
The end result - Theodore's owners have 3 months to remove him from the estate.
BUYERS AND MANAGEMENT ASSOCIATIONS : CRITICAL CONSIDERATIONS
Although media reports suggest that an appeal against this particular judgement is in the offing, never buy into a residential estate until you have fully understood and accepted all the rules and regulations you are agreeing to.
Management Associations :
Critical to the Court's decision in the case was the tight wording of the Conduct Rules in question - in formulating them, make sure that they will be enforceable. Take full legal advice in any doubt. Secondly, do not make the mistake of having rules and then not enforcing them. In an earlier High Court Case, the Home Owners Association of a Game Reserve was barred from enforcing its rule against the keeping of any domestic pets, because on the particular facts of that case it was held to have waived its rights to do so after an 8 year failure to take any enforcement action. Presumably that is why management in the "Theodore" case was advised to enforce its rules only against "new arrivals".
The measure of discomfort you have to endure if your property is subject to a servitude in favour of another
The measure of discomfort you have to endure if your property is subject to a servitude in favour of another
By Johan Muller
All properties transferred are subject to certain conditions contained in their title deeds which conditions in many instances restricts the right of use of those relevant properties whether it be by way of initial conditions of establishment or subsequent later servitudes of some kind.
The question is however raised what measure of discomfort should the parties endure to exercise their rights during use of the servitude.
Johl and Another vs Nobre and Others
In this case the owner of the dominant property had a right of way servitude over his neighbour’s servient property. Over the years the dominant owner increased the security measures on this servitude to the point where it was protected by two security gates, CCTV and armed guard.
The second owner found himself in a position where he no longer had access to the servitude along the route which he had traditionally used and his application for a remote control to open the security gates was turned down by the first owner on the grounds that it increased the security risk and the second owner had no choice than to apply for an interdict restricting the first owner’s actions.
In the judgement attention was drawn to the principle of reasonableness which governs the relationship between the dominant and servient owners and the holder of the servitude must exercise the servitude civiliter modo that is in a civilised and considerate way that will cause the least damage or inconvenience to the servient property.
It therefore follows that the holder of the servitude may not increase the burden on the servient property beyond the express or implied terms of the servitude. In interpreting the servitude agreement the Court seeks the intention of the parties from the terms of the agreement itself and surrounding circumstances prevailing at the time of the creation of the servitude should be taken into account.
A servitude agreement should be interpreted as narrowly as possible and where the wording of the servitude is clear it must be given the normal grammatical meaning and the Court will not have recourse to the current surrounding circumstances (almost as prescribed by way of the parol evidence rule).
In applying the legal principles as aforementioned and the words of the servitude contained in the title deed, namely a servitude of right of way, the exclusion of the second owner from the driveway is a restriction contrary to the servitude agreement and the first owner was ordered to provide the second owner with the required access.
Pappalardo vs Hau
Mr P being a resident of a township in Gauteng had been ordered by the High Court to permit his neighbour, Mr H, to insert a number of drainage ports in the wall which he had constructed along the common boundary along the two erven.
The purpose of the drainage ports were to allow rainwater gathering on the neighbour’s side of the boundary wall to flow down the natural slope of the two properties onto Mr P’s erf. The High Court had held that Mr P as owner of the lower lying property was obliged to accept water from his higher lying neighbour.
Although the aforementioned concept is sound in law, it will only limit the lower lying property to an obligation to receive the natural flow of rainwater and as the water flow in this instance was concentrated and directed to the boundary wall in an artificial way, the Court of Appeal overturned the decision of the High Court, and ordered the higher lying neighbour to redirect the water flow to the street boundary proving that a servitude may only be used in a reasonable way with consideration of the circumstances prevailing when the servitude was created and for this reason only.
THE STATUS REGARDING THE LEGAL DUTY OF A CHILD TO SUPPORT HIS/HER PARENTS.
Whenever we hear the word maintenance we automatically think of the duty of support arising between spouses or parent’s duty to support and care for a child as set out and specifically enforced by various Acts of parliament.
But what is the position of a parent is in need of support and has no one else to turn to but their own and/or adopted children?
THE LEGAL POSITION
In South Africa the Maintenance Act, Act 99 of 1998, regulates all maintenance matters but unfortunately this act does not specifically place a duty on a child to support his/her parent in the event that such a need arises for the support from the child.
This means that the answer to our question will have to be sought from our case law to establish whether such a legal duty exist and rest on a child to support his parents if the need arises.
Fortunately in terms of our case law the legal position is clear that children have a duty to support their parents according to their ability, in whole or in part even though such children might be minors.
In Oosthuizen v Stanley, Judge of Appeal Tindall summarized the position as follows:
"The liability of children to support their parents, if these are indigent (inopes), is beyond question: see Voet, 25.3.8; van Leeuwen, C Censura Forensis 1.10.4. The fact that a child is a minor does not absolve him from his duty, if he is able to provide or contribute to the required support; see in re Knoop, 10 S.C. 198. Support (alimenta) includes not only food and clothing in accordance with the quality and condition of the person to be supported, but also lodging and care in sickness, See Voet, 25.3.4; van Leeuwen, Censura Forensis, 1.10.5; Brunnemann, in Codicem, 5.25. Whether a parent is in such a state of comparative indigency or destitution that a court of law van compel a child to supplement the parent’s income is a question of fact depending on the circumstances of each case."
Such a claim for support however has a much stricter criterion as in the case of a child claiming support from his/her parents in that a parent has to prove that he/she cannot provide for the necessities of life and that his/her child has the financial ability to provide such support
The necessities of life in this context will be the basic need for food, clothing, decent shelter and care in sickness. Whether a child has the ability to provide such support is a factual one and will depend on the child’s financial position, to be able to support his/her parents from his own financial means taking into consideration the child’s duty of support towards his spouse and/or his own children.
Now that we know the legal position and the requirements to be dealt with in these types of claims, the following steps need to be followed to institute and proceed with the claim:
- Apply for maintenance at the magistrate’s court in the district where you live.
- If you are in doubt, your local court will tell you at which court to apply for mantenance.
- Go to the relevant court and complete and submit Form A: Application for a maintenance order.
- In addition to the complete form, submit proof of your monthly income and expenses, such as receipts for food purchases, electricity and/or rent bill payments.
- The court will set a date on which you and the person whom you wish to pay maintenance must go to court.
- A maintenance officer and an investigator will investigate your claim and look into your circumstances.
- The court will serve a letter instructing a person to come to court on the person against whom the claim is brought to appear in court on a specific date to discuss the matter.
- The respondent then has a choice between agreeing to pay the maintenance as claimed, and contesting the matter in court.
- If the respondent agrees to pay the maintenance as claimed, a magistrate will review the relevant documentation. They will then make an order, and may decide to do so without requiring the parties to appear in court.
- If the person who is allegedly liable to pay maintenance does not consent to the issuance of an order, they must appear in court, where evidence from both parties and their witnesses will be heard.
- If the court finds the person liable for paying maintenance, it will make an order for the amount of maintenance to be paid. The court will also determine when and how maintenance payments must be made.
What happens if the child who already supports the parent dies?
If the deceased was at the time of his death responsible for the maintenance and support of his or her parent, the parent will have a claim against the deceased’s child’s estate for continued maintenance and support.
If the deceased died in a motor vehicle accident where a third party was negligent or at the workplace where his employer negligently contributed to his death, the parent will not only have a claim against the deceased’s estate, but also against the Road Accident Fund or the deceased’s employer, depending on the circumstances of each case.
Such claims will not be dealt with in terms of what was stated above but on normal motion and or action procedures for which legal assistance will be required and of paramount importance.
Even though there is no specific legislation in South Africa stating that children owe their parents a legal duty of support it is clear from our case law that in the eyes of South African Courts such a duty does in fact exist and will be enforced by our courts if the requirements as stated above can be alleged and proved.
The validity of emails amending written agreements
Almost all agreements relating to immovable property contain so-called Non-Variation clauses of which the wording is more or less as follows :
“No additions or amendments to this agreement will be of any force unless it is reduced to writing and signed by both parties concerned.”
The effect of the aforementioned still remains that no oral amendments or additions will be deemed as valid and that all amendments and additions have to be in writing and signed by the relevant parties.
In practice this resulted in formal addendums being drafted to amend agreements or to add to them, which were formally presented to the parties for signature by default of which any deviation, amendment or addition had no validity due to the content of the non-variation clause.
In the case of Spring Forest Trading 599 CC vs Wilberry Pty Ltd trading as Eco Wash and Others, the question was raised whether amendments done by way of email and accepted by way of return email complied with the requirement contained in a non-variation clause, that such amendment had to be in writing and needed to be “signed” by both parties.
The Supreme Court of Appeal decided in the aforementioned case not to impose a strict requirement of adherence to the non-variation clause and in doing so held that information communicated by email pursuant to which an agreement is reached, can be authenticated and given effect by the electronic signature attached to the email.
Even though the parties had not recorded their amendment to the agreement in traditional manner, but instead by way of email, the method used to conclude their amendment satisfied the requirements of the Electronic Communications and Transactions Act (ECT Act) and was therefore valid.
So what is a signature?
Whether a person’s signature is more akin to hieroglyphics or if a person chooses to sign their name in a neat print, makes very little difference, the determining factor is whether the sign or mark is made with the intention of signifying assent to the document.
In the aforementioned case the Supreme Court of Appeal found that the various parties’ names, recorded at the end of their emails were electronic signatures as defined by the ECT Act and as a result thereof the parties have validly agreed to vary their agreement by way of email.
In the light of the aforementioned it is important that parties should not agree to anything in an email which they might not actually be willing to abide by as the aforementioned paves the way for valid amendments to written agreements by way of such emails.
TROU JY BINNEKORT? OORWEEG DIE REGSGEVOLGE : EDDIE SMIT
~TROU JY BINNEKORT? OORWEEG DIE REGSGEVOLGE
Maak staat op die raad van die man wat twyfel of dit reg is: die man wat nie twyfel nie, het die saak maar van een kant af beskou.
C.J. Langenhoven (Waardes en Waagmoed)
Met die bruilofseisoen in volle swang, moet jy sorg dat jy tydig regsadvies inwin oor die drie huweliks-goederebedelings wat in Suid-Afrika vir die partye beskikbaar is.
Dit is belangrik om ‘n voorhuwelikse kontrak te sluit voordat jy trou, anders sal jy ingevolge ons reg outomaties in gemeenskap van goed getroud wees. Dit mag heel moontlik nie die beste keuse vir jou en jou huweliksmaat wees nie. Dit is moontlik om later gesamentlik jul huweliksgoederebedeling te verander nadat die huwelik reeds gesluit is. Dit behels egter ‘n gesamentlike hofaansoek in die Hoë Hof nadat julle ook aan al jul skuldeisers skriftelik kennis gegee het. Dit is moontlik, maar dit is nie ‘n vinnige of ‘n goedkoop opsie nie. En dit is in geheel onnodig as julle voor die huwelik die nodige erns en aandag aan jul sake gee.
Die drie keuses
1. Huwelik in gemeenskap van goedere:
Hierdie is die standaard bedeling wat op huwelike van toepassing sal wees indien jy nie ‘n huweliksvoorwaardekontrak sluit nie. Alles wat jy besit en skuld, asook alles wat jy gedurende jou huwelik bymekaar maak, beland in die een enkele gemeenskaplike boedel. Hier is slegs ‘n paar uitsonderings. Jou huweliksmaat sal skriftelik tot sekere transaksies moet toestem. Op datum van egskeiding of dood, sal jou gemeenskaplike boedel omtrent altyd gelykop tussen die huwelikspartye verdeel word, ongeag van wat elkeen van julle tot die huwelik bygedra het. Indien een van die gades in ‘n finansiele penarie beland, is dit die gemeenskaplike boedel wat aanspreeklik gehou sal word. Beide huweliksmaats word outomaties saam gesekwestreer en sal alles verloor ingeval van sekwestrasie.
2. Huwelik buite gemeenskap van goedere, sonder die aanwasbedeling :
Jou eie bates en jou eie laste, dit wat jy inbring in die huwelik en dit wat jy gedurende die huwelik opbou en bymekaar maak, bly joune en joune alleen. Jy kan na vrye wil daarmee handel. Jy sal glad nie aanspreeklik wees vir jou gade se afsonderlike skulde nie en dienooreenkomstig sal die sekwestrasie van jou gade se boedel ook nie jou boedel raak nie. Jy sal net jou bewyse van eienaarskap aan die Trustee van die gesekwestreede boedel moet lewer en jou bates sal aan jou as die solvente huweliksmaat vrygestel word. Hierdie huweliksgoederebedeling mag dalk die regte keuse vir jou wees. Let egter daarop dat dit 'n risiko inhou vir die huweliksmaat wat deur voltydse tuisteskepping en deur ondersteuning van die gesin tot die huwelik bygedra het, eerder as met uitsluitlike beroeps-en finansiele bydraes. Sonder n eis van aanwas kan so 'n huweliksmaat sleg aan die kortste ent trek.
3. Huwelik buite gemeenskap van goedere, met insluiting van die aanwasbedeling :
Soos met die vorige huweliksgoederebedeling, bly jou bates en jou laste joune en volledig onder jou eie beheer. Jou bates is ook beskerm teen jou huweliksmaat se skuldeisers. Die verskil is dat by datum van egskeiding of dood, word die sogenaamde aanwas of groei van julle afsonderlike boedels bereken. Jy en jou huweliksmaat deel dan gesamentlik in hierdie groei, met slegs enkele uitsonderings.
Hierdie is vandag 'n billike en ook die mees gewilde huweliksgoedere bedeling. Dit is egter nie noodwendig die beste keuse vir jou spesifieke omstandighede nie, gaan neem dus behoorlike advies.
Dit laat beide van julle in die aanloop tot jul huwelik met 'n paar belangrike besluite om te maak. Al drie die opsies hierbo het hul eie voordele en nadele. Hierdie uiteensetting is slegs n algemene opsomming oor die onderwerp. Kry 'n prokureur om 'n gepaste huweliksvoorwaarde kontrak vir julle spesifieke situasie op te stel. Julle is dit aan mekaar as huweliksgenote verskuldig om ingeligte besluite hieroor te neem,
Hierdie kontrak moet ook voor die huwelik deur die partye onderteken word en notarieel verly word. Dit is beslis nie 'n proses wat julle op nommer 99 of selfs net 'n paar dae voor die troue moet aanpak nie.
YOUR PRACTICAL GUIDE TO SURVIVING BLACKOUTS
“What fresh hell is this?” (Dorothy Parker)
Regrettably it seems that loadshedding is going to be particularly bad in the next few months – have a look at all the “red” days in Eskom’s load-shedding calendar at:
Here’s what you need to do -
- Prepare: Keep an eye on http://loadshedding.eskom.co.za/ and your municipality’s schedules - links at http://www.eskom.co.za/Pages/loadsheddingmunic.aspx (Cape Town - watch for new schedules from 1 February). But accept that you may get no warning, so in times of high risk, assume the worst – and prepare for it.
- Invest in a UPS: Protect your computers and other electrical equipment with an Uninterrupt-ed Power Supply or two. Even if your insurance policy covers damage from the power surges which are often associated with outages (not all policies provide such cover – check with your broker), sudden unexpected computer shutdowns can result in significant loss/corruption of data as well as difficulties in re-booting.
- If you want to go further and buy a generator: Research your needs and the options thoroughly first. See Money-web’s “The Generator Generation” at http://www.moneyweb.co.za/moneyweb-south-africa/the-generator-generation.
- Make the best of it: Read Health 24’s “How to survive load shedding” http://www.health24.com/Lifestyle/Environmental-health/21st-century-life/How-to-survive-load-shedding-20140307 for some practical tips on making life in the dark bearable.
- Your taps may run dry: A side-effect of extensive black-outs is loss of pressure in municipal water supply – in some cases your taps will run dry altogether - because of reliance on booster and other electrical pumps. Have an alternative supply of water on hand!
- Keep your vehicles topped up: You don’t want to coast into your local service station on an empty tank only to find its pumps are out of action or that Eskom has bought up all the diesel.
- Check flight times: Refuelling issues at airports may cause significant flight delays.
~~DOES THE ABSENCE OF APPROVED BUILDING PLANS AND AN OCCUPATIONAL CERTIFICATE RENDER A LEASE INVALID?
DOES THE ABSENCE OF APPROVED BUILDING PLANS AND AN OCCUPATIONAL CERTIFICATE RENDER A LEASE INVALID?
In the case Wierda Road West Properties Pty Ltd (Wierda) vs SizweNtsalubaGobodoinc (SNG)
Wierda owned a property that was leased by SNG. Wierda undertook as part of the rental agreement to refurbish the rental premises. During the course of the refurbishment it was discovered that there were not building plans in respect of a new wing added to the property by the previous owner, nor was there any occupational certificate for such portion.
The approval of the building plans and the issuing of the required occupational certificate took a substantial period of time due to technical difficulties and NHBRC building requirements. During the aforementioned period the offices became too small for SNG and the vacated the premises without notice to Wierda.
Although they indicated to Wierda that the reason for the vacation was that they were seeking new premises their defence in Court was that had they known of the absence of building plans and the occupancy certificate they would never have signed the agreement and the absence of the aforementioned rendered the lease agreement void.
The High Court found the lease agreement to be valid but unenforceable due to the contravention of Section 4(1) and 14(1) of the National Building Regulations and Building Standards Act which stated that “the owner of any building or any person having an interest therein erected or being erected with the approval of a local authority who occupies or uses such building or permits the occupation or use of such building unless a certificate of occupancy has been issued in respect of such building … is guilty of an offence.”
Wierda took the matter on appeal and the Supreme Court of Appeal found that the aforementioned legislation introduced Penal Sanctions which were adequate if contravened and there was no justifiable basis that it intends to render private contracts such as leases contravening these sections to be invalid.
In the light of the aforementioned it is clear that the absence of building plans and/or certificates of occupancy will not render a private deed of sale or lease invalid or unenforceable but will subject the parties to the penalties imposed by the Act and be classified as an offence.