Are You Using Your Residential Property for an Unauthorised or Illegal Purpose?
Residential homeowners must be aware of the judgment handed down by the Supreme Court of Appeal (SCA) in the case of the City of Johannesburg Metropolitan Municipality v Zibi (234/2020) [2021] ZASCA 97 (9 July 2021). The outcome of this case carries significant implications for residential homeowners who utilise their homes for commercial purposes without the necessary authorisation from the municipality. Rates payable by residential landowners are governed by the Municipal Property Rates Act 6 of 2004 (the Act). This legislation confers and regulates the local municipality’s power to value property and levy rates accordingly. The zoning of property is determined by various categories created by the Act, such as residential, commercial, or agricultural. One category for homeowners to be aware of, and which is discussed in detail in this judgment, is that of unauthorised or illegal use. When landowners use their property in an unauthorised manner, this category becomes applicable. In this matter, the respondents (Mr and Mrs Zibi and their two children) owned and resided in a residential home consisting of five bedrooms and two bathrooms. They decided to rent out two of their unused bedrooms as accommodation to students and young professionals, thus using the home for commercial purposes. The respondents did this without prior authorisation from the municipality. Several inspections were completed at the property, and the municipality discovered that it was being used as a commune (a commercial concern). In response, the municipality issued several notices to the respondents to terminate the unauthorised use of the property and further imposed a penalty rate per the rate category for unauthorised or illegal use; however, the property was not rezoned. Due to further non-compliance with the notices, the municipality obtained a High Court order interdicting the respondents from continuing to use the property in an unauthorised manner. The matter escalated when the respondents launched an application in the High Court challenging the validity of the municipality imposing a penalty rate. The High Court found in favour of the respondents, and this matter was finally taken to the SCA. The ultimate finding of the SCA was that where property is used in an unauthorised or illegal manner, it is within the municipality’s powers to impose penalties on homeowners. As a result, homeowners currently renting out space in their residential properties or intending to carry on a commercial concern in property zoned for residential use must obtain authorisation from the municipality to do so. Without such authorisation, property owners run a high risk of being penalised with higher rates. Reference List City of Johannesburg Metropolitan Municipality v Zibi (234/2020) [2021] ZASCA 97 (9 July 2021). Municipal Property Rates Act 6 of 2004. While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither writers of articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes.
Redefining divorce rights: Section 7(3) of the Divorce Act struck down by the Constitutional Court
In a significant legal development, the Constitutional Court of South Africa, on 10 October 2023, upheld a judgment from the High Court of Pretoria, declaring Section 7(3) of the Divorce Act as unconstitutional. This ruling has far-reaching implications for marriages entered before the commencement of the Matrimonial Property Act and has the potential to reshape the legal landscape concerning property rights in divorce cases. This article explores the Constitutional Court’s decision, the factors it considered, and the practical effects of this groundbreaking ruling on the division of assets in divorce proceedings. A ruling, delivered in the High Court of Pretoria, declared that Section 7(3) of the Divorce Act was inconsistent with the Constitution, especially regarding marriages established on or after the enforcement of the Matrimonial Property Act. Following this, on 10 October 2023, the Constitutional Court affirmed the High Court’s judgment, declaring Section 7(3) of the Divorce Act unconstitutional. Section 7(3)(a) of the Divorce Act reads as follows: “(3) a court granting a divorce order in respect of a marriage out of community of property- entered into before the commencement of the Matrimonial Property Act, 1984, in terms of an antenuptial contract by which community of property, community of profit and loss and accrual sharing in any form are excluded; Some of the factors the Constitutional Court considered are as follows: Differentiation between marriages entered before and after the Matrimonial Property Act. The court ruled as follows: “In my view, the relevant differentiation is confined to spouses in old ANC (antenuptial contract) marriages. Within that group, spouses whose marriages terminate by divorce are treated differently from those whose marriages terminate by death, because the former class has the benefit of the redistribution remedy whereas the latter class does not.” The discriminatory factor of the differentiation, in terms of section 9 of the Constitution: “Even on the broadest view of ‘attributes and characteristics’, however, differentiation based on whether the marriage ends by divorce or death has nothing to do with the attributes and characteristics of the spouses.” The justification of section 36 of the Constitution: “Is the limitation on the equality right in section 9(1) of the Constitution justifiable in terms of section 36 of the Constitution? …” The Constitutional Court then followed with “…it is the existence of section 7(3), coupled with the absence in any other legislation of a similar remedy for marital dissolution by death, that gives rise to the differentiation. It is understandable, therefore, that section 7(3) was the target of the attack. That the remedy might more appropriately be a reading-in of an analogous provision into the MPA is not fatal to the confirmation proceedings.” The court afforded the Parliament 24 months to remedy the defect and stated that there is no reason that there should not be an immediate effective relief in the form of an interim reading-in. It was suggested by the High Court that the reading-in be as follows: “A court granting a decree of divorce in respect of a marriage out of community of property— (a) entered into before the commencement of the Matrimonial Property Act in terms of an antenuptial contract by which community of property, community of profit and loss and accrual sharing in any form are excluded; (b) entered into before the commencement of the [Amendment Act] in terms of section 22(6) of the [BAA] as it existed immediately prior to its repeal by the [Amendment Act]; or (c) entered into in terms of any law applicable in a former homeland, without entering into an antenuptial contract or agreement in terms of such law, may, subject to the provisions of subsections (4), (5) and (6), on application by one of the parties to that marriage, in the absence of any agreement between them regarding the division of their assets, order that such assets, or such part of the assets, of the other party as the court may deem just, be transferred to the first-mentioned party.” In conclusion, this means that parties married out of community of property without the accrual will be entitled to claim redistribution of assets despite their marital regime in their antenuptial contract. However, it must be kept in mind that this does not grant a party automatic entitlement and that the party claiming in terms of section 7(3) of the Divorce Act still has to prove their contribution towards the other party’s estate. Each matter will be dealt with on its own merits and the courts may make an order on what may seem just and equitable. Reference list: EB (born S) v ER (born B) and Others; KG v Minister of Home Affairs and Others (CCT 364/21; CCT 158/22) [2023] ZACC 32 (10 October 2023) While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes. Powered by SucceedGroup
Can you inherit from someone you have merely been living with?
In South Africa, the number of couples who are permanently living together in life partnerships is increasing every year. What are the consequences that would ensue if either of the partners in the relationship dies without a will? Should a surviving partner in such a scenario have a claim for inheritance or maintenance from the deceased estate? If yes, under what circumstances would a claim be allowed? The answer to these questions will be explored in light of the Bwanya v Master of the High Court, Cape Town and Others case. The facts of the Bwanya case were as follows: Ms Bwanya and Mr Ruch entered into a romantic relationship in 2014. They grew so intimate that they moved in together as well. The couple’s friends all knew about their relationship, and Mr Ruch even introduced Ms Bwanya to his friends as his wife. The romantic relationship they had, comprised all the characteristics of a marriage. For example, Mr Ruch bought all the groceries, and household necessities and also provided for the household expenses. Ms Bwanya provided him with love, care, support, and companionship. In addition, the couple also made future plans together. For example, Mr Ruch has been helping Ms Bwanya obtain her license. The deceased had also planned to buy her a car, as the couple planned to start a cleaning business together. The two also had plans to cement their relationship with a baby. In 2015, the pair got engaged. The couple planned a trip to Zimbabwe for lobola negotiations to commence. Mr Ruch also planned on selling one of his properties in preparation. Sadly, two months before the trip to Zimbabwe, Mr Ruch passed away. He had nominated his mother in his will who had already predeceased him. Thus, he died intestate. Ms Bwanya, after the death of her life partner lodged a two-fold claim against the deceased estate. Firstly, to inherit under the Intestate Succession Act, and secondly, to claim maintenance under the Maintenance of Surviving Spouses Act. The basis of the claim was that the relationship between the two, was akin to a marriage and that the parties had undertaken reciprocal duties of support. The Constitutional Court in its judgement, held that permanent life partnerships must be accorded the necessary respect in our society as they are one of life’s realities. Furthermore, the court declared that the relevant legislative provisions constitute unfair discrimination and are constitutionally invalid. On this basis, the court held that when the term “spouse” is used in the provisions, it must include: “a surviving partner of a permanent life partnership terminated by the death of one partner in which the partners undertook reciprocal duties of support and in circumstances where the surviving partner has not received an equitable share in the deceased partner’s estate”. The effect of this judgement is that a surviving partner in a permanent life partnership will be able to claim for maintenance and inheritance. However, it must be emphasised, that this legal entitlement of a surviving life partner does not flow from the mere act of living together permanently as a couple. Permanent life partners do not obtain a right to inherit or claim from a deceased estate by the operation of law. The court qualified the claim by stating that a surviving partner can only claim where the parties had undertaken reciprocal duties of support. The court gave a guideline as to what can be considered to determine whether or not there is a reciprocal duty of support between life partners. A reciprocal duty of support between life partners may entail the following: “…such as loyalty and sympathetic care and affection, concern…as well as the more material needs of life, such as physical care, financial support, the rendering of services in the running of the common household or a support-generating business…To my mind, these features are not foreign to permanent life partnerships….In all these respects, permanent life partnerships are very much akin to marriages.” In conclusion, it is clear from this judgement that a surviving life partner is not left without a claim when their life partner has predeceased them. However, this claim is not guaranteed because the claim does not flow from the mere fact of living together. The court carefully set out the circumstances under which the claim would possibly be allowed. Reference List: 1. Bwanya v Master of the High Court, Cape Town and Others 2022 (3) SA 250 (CC). Marriages on the decline in South Africa (02-10-2023) <https://www.statssa.gov.za/?p=16142> While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes. Powered by SucceedGroup
Why a Notary? – Part 2
In Part 1 of this article, we looked at the roles and functions of a notary, especially their general duties. In this part, we will look at the work reserved for notaries and a notary’s role in the certification and authentication of documents. One will see the necessity and importance of using a notary. The Deeds Registries Act requires notarial attestation (official certification by a notary) for several types of documents to be registered in the Deeds Office. These include, but are not limited to: 1. Antenuptial contracts; 2. Notarial bonds; 3. Personal servitudes, for example, a usufruct; 4. Praedial servitudes, for example, a right of way; 5. Long-term leases, cessions and subleases as well as cancellation and releases thereof; 6. Cession of exclusive use areas (in terms of the Sectional Titles Act). Notarial functions and document certification The notary, in their capacity as a commissioner of oaths, can authenticate and certify affidavits signed in their presence. The notary can also certify documents as true copies, prepare powers of attorney for use in the Deeds Office, and the preparation of various other non-notarial documents in notarial form for example deeds of donation, trust deeds and wills. Authentication procedures and international requirements Authentication involves a notary confirming the identity of the person signing a document. For documents signed in South Africa to be used abroad, or those signed abroad for use in South Africa, there are specific procedures. Typically, a notary authenticates the signer’s signature. This notary’s signature is then verified by the High Court Registrar, and further by the Department of Justice Secretary. However, these steps can sometimes be bypassed, allowing the Department of Justice to directly authenticate the notary’s signature. Simplifying authentication through the Apostille Convention This authentication process is complex but necessary for legal acceptance of documents in other countries. However, if the foreign country is part of the Hague Convention, the process is simpler. The Apostille Convention, established on 5 October 1961, removes the need for multiple steps. In this case, only the High Court in South Africa needs to authenticate the notary’s signature using a specific template, known as “apostilling” the document. Rule 63 and authentication of foreign documents in South Africa Rule 63 of the High Court specifies how to authenticate documents signed outside South Africa for use within the country. A document from abroad is considered valid in South Africa if authenticated by one of the following: a) The head of the South African diplomatic or consular mission or their authorised delegate. b) A Consul General or the Consul General of the United Kingdom. c) Any authorised government authority in the foreign country responsible for document authentication. d) a notary public whose signature must be authenticated by any of the authorities mentioned in points (a), (b) or (c). e) A notary public in the United Kingdom of Great Britain and Northern Ireland, Rhodesia, Lesotho, Botswana, or Swaziland. Notarial seals and evidential significance The rules state that the person authenticating documents should use their official seal if they have one. If not, they must state this under their signature. In South Africa, notaries aren’t legally required to use a seal (which is typically a rubber or metal stamp with “notary” and the notary’s name on it) on the documents they attest. However, it’s common practice for notaries to use such seals. Notary authentication is highly regarded for proving the authenticity of the signers and the accuracy of the document’s information. Reference list: 1. Act 47/1937 2. Sec 87(1) 3. Sec 61(1) 4. Sec 65(1) 5. Sec 75(1) 6. Sec 77(1) 7. Act 95/1986 Sec 25(1) and Sec 27(1) 8. Van der Merwe FE Notarial Practice 1st Edition p 20 – p 21 9. Van der Merwe FE Notarial Practice 1st Edition p 10 While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes. Powered by SucceedGroup
Is it possible to override a registered antenuptial contract with a postnuptial agreement?
Before the Matrimonial Property Act 88 of 1984 (MPA) was introduced, matrimonial property law in South Africa was governed by the immutability principle. This principle dictated that the property regime chosen by a couple at the time of their marriage could not be altered afterwards. The case of Honey v Honey in 1992 (93 SA 609 (W)) reinforced this, stating that under common law, spouses couldn’t modify their matrimonial property system through an agreement. Any contract attempting to change the prenuptial agreement was considered void and unenforceable. However, the introduction of the MPA softened this rigid stance by providing ways for couples to change their matrimonial property system after marriage. Matrimonial Property Act In terms of section 21(1) of the MPA, a husband and wife, whether married before or after the commencement of this Act may jointly apply to a court for leave to change the matrimonial property system including the matrimonial power, which applied to their marriage. The court has the authority to approve changes to a matrimonial property system if it is convinced that: there are sound reasons for the proposed change. sufficient notice of the proposed change has been given to all creditors of the spouses. the proposed change will prejudice no other person. Upon meeting these conditions, the court can order that the existing matrimonial property system no longer governs the marriage and can permit the spouses to execute a notarial contract that will define their matrimonial property system going forward, subject to any conditions the court deems appropriate.1 AM v HM 2020 (8) BCLR 903 (CC)2 The abovementioned case concerned the question of whether a contract concluded by married persons, which departs from the terms of their antenuptial contract, is valid and enforceable. The applicant (wife) and respondent (husband) were married in community of property with the exclusion of the accrual system. During their marriage, the applicant (the wife) drafted an agreement to revise specific terms of their antenuptial contract. This new agreement proposed that she would receive half of the respondent’s (husband’s) estate and that he would continue to provide for her maintenance. The husband signed this agreement on 10 November 2014, and following this, the couple continued to live together as husband and wife. On 30 November 2014, the respondent indicated that he intended to institute divorce proceedings and issued a divorce summons against the applicant. The applicant filed her counterclaim where she sought, amongst other things, a declaratory order that the agreement was valid and binding and that it was signed in settlement of all claims or disputes that might emanate from the divorce action. The Regional Court granted the divorce order and dismissed the counterclaim. It held that the agreement was not entered into in contemplation of a divorce and that it would be against the public policy to allow parties to opt out of their marital regime without the mechanism provided for in section 21(1) of MPA. High Court The applicant applied to High Court for leave to appeal. The appeal was upheld by the High Court which overturned the decision of the Regional Court. It held that the agreement was enforceable since it had been concluded in contemplation of a divorce with its purpose being to constitute a settlement agreement. Supreme Court of Appeal The respondent appealed to the Supreme Court of Appeal. This court noted that since the parties did not approach a court in terms of section 21(1) of the MPA to sanction the change, the central issue was whether the agreement was made in contemplation of a divorce. It held that the applicant failed to prove that the agreement was concluded in contemplation of a divorce. The Supreme Court of Appeal upheld the appeal and set aside the order of the High Court. Constitutional Court The applicant approached the Constitutional Court for leave to appeal. In a unanimous decision, the Constitutional Court held that while the matter engaged the court’s jurisdiction, it was not in the interest of justice to grant leave to appeal. This was because the applicant introduced several constitutional issues in terms of contractual freedom, dignity, and unfair discrimination. She also had a constitutional complaint in the interpretation of section 21(1) of MPA. The Court held that these issues had not been ventilated in the other courts and this would in effect render the Constitutional Court a court of first and last instance. Furthermore, it was held that the Supreme Court of Appeal did not prescribe a bar on all agreements between spouses married out of community of property. The finding only related to the agreement at hand. The appeal was dismissed. Given the previously discussed legal context, it’s a well-established principle that spouses cannot modify an antenuptial contract after marriage without first obtaining court approval as outlined in section 21(1) of the Matrimonial Property Act (MPA). However, this restriction doesn’t prevent spouses who are married out of community of property from entering into other types of agreements. Reference list: section 21(1) of the Matrimonial Property System 88 OF 1984 J Heaton: South African Family law (3rd ed) AM vs HM 2020 (8) BCLR 93 (CC) Honey v Honey 1992 93) SA 609 (W) While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes. Powered by SucceedGroup
Why a Notary? – Part 1
Clients often ask why certain documentation must be authenticated or certified by a Notary and not by a Commissioner of Oaths. To answer this question, one must know and understand the role and functions of a Notary, also commonly known as a Notary public. A Notary is a public functionary authorised by the High Court to draw and attest contracts and other documents.1 Historically, the function of a Notary can be found in Roman and Roman-Dutch Law. In the latter official recognition was given to the office of a Notary by way of an edict dated 2 March 1524.2 According to FE Van der Merwe, the first Notary was appointed in the Cape in 1672, and from then until 1858 licenses were issued to enable persons to act as notaries.3 In 1903 legislation in the Cape Province prescribed that no person apart from an attorney can be admitted as a Notary.4 This requirement was brought forward in subsequent legislation. The Legal Practitioners Act 28 of 2014 makes a provision that should a person wish to be appointed as a Notary, they have to apply to the High Court for admission.5 The application must indicate that the applicant has been admitted as an attorney; that there is no application to strike them off the roll or suspend them from practice; and that the applicant has passed an examination in respect of the practice, functions, and duties of a Notary. Van der Merwe states that “the office of Notary is a special office which enjoys high regard but is subject to strict norms in respect of the duties involved and the standard of conduct expected of the incumbent of such office. Much emphasis is placed on characteristics such as impartiality, credibility, responsibility, and independence.”6 Elliott quotes the following from the case of Incorporated Law Society of the Transvaal v Kuyper7 where JP Curlewis states: “The office of a Notary is not only one of very great antiquity, but one of the highest importance and responsibility, an office of such responsibility that in most countries in Europe and in this country, the greatest confidence and trust is reposed in any document executed by a Notary.” As was said by Mr. Justice Solomon in the case of Transvaal Land Bank Ltd v The Registrar of Deeds 1907 TS 759 at 764 “the presumption is that every statement contained in a Notarial Deed is true and that all proper solemnities have been observed by the Notary. A Notarial Deed seems to me a document of such great moment that one may almost call it a solemn document; all the solemnities should be observed by the Notary in essence therefore a notarial document, one for example which is executed before the Notary by the parties and signed by the Notary, is accepted as being accurate and trustworthy as to its content.”8 The Deeds Registries Act in turn defines a Notarial Deed as a deed attested by a Notary but does not include a document or signature which is authenticated by a Notary or a certified true copy of a document by the Notary.9 It is incumbent on the Notary to file all Notarial Deeds executed before him in his protocol and note in his protocol register in numerical order the records thereof. Van der Merwe collates the general duties of a Notary as follows: Should be professionally independent in their relationship with their clients; and Should act impartially and in good faith at all times and not seek to promote their own interest; and All information must be preserved with the highest degree of secrecy and is privileged; and Prepare documents with great care and attention; and Must ensure that the parties are identified and have the capacity to execute the deed and must be executed by the parties or their agents in the presence of the Notary; and Should explain the contents of the document to the parties and ensure they understand it; and Ensure all prescribed formalities in respect of a Notarial Deed are timeously complied with.10 In Part 2 of this article, we will look at the work reserved for Notaries and the certification and authentication of documents. Reference list: Elliott The South African Notary 6th Edition pg. 1 Van der Merwe FE Notarial Practice 1st Edition pg. 2 – Act 28 of 2014 Van der Merwe FE Notarial Practice 1st Edition pg. 3 Van der Merwe FE Notarial Practice 1st Edition pg. 4 – Act 11 of 1903(c) Section 24 and Section 26 of the Act Van der Merwe FE Notarial Practice 1st Edition pg. 7 1925 TPD 760 at 764 Elliot South African Notary pg. 10 1925 TPD 760 at 764 Deeds Registries Act 47/37 Section 102 While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes. Powered by SucceedGroup
Does my maiden name automatically change if I get married in South Africa?
Marriage is a significant milestone in one’s life, bringing with it a multitude of changes and decisions. One such decision that often arises is whether to change one’s maiden name after tying the knot. In South Africa, as in many other countries, there are legal and personal considerations to contemplate when it comes to changing or retaining your maiden name. This article will delve into the intricacies of South African marriage laws and the process of changing or retaining your maiden name. South African marriage laws In South Africa, marriage is governed by the Marriage Act of 1961 and the Civil Union Act of 2006. These laws provide the framework for the legal aspects of marriage and dictate the options available for handling your name after marriage. The default option: No automatic name change Unlike some countries where marriage automatically changes a woman’s last name to her husband’s, South African law does not impose such an automatic name change. Upon marriage, your maiden name remains unchanged in the eyes of the law. This means you can continue to use your maiden name for all legal and official purposes if you wish. Electing to change your name If you decide that you want to adopt your spouse’s surname, you can do so through a legal process. This involves obtaining a Marriage Certificate, which is proof of your union, and using it to update your identification documents, such as your ID book, passport, and driver’s license. This process does not happen automatically; you must actively choose to make the change. Combining surnames or creating a new one South African law also allows couples to choose to combine their surnames or create a new surname altogether. This can be a meaningful way to honour both partners’ family names and create a unique identity for your family unit. Personal considerations While South African law provides the framework for changing or retaining your maiden name, the decision is deeply personal. Many factors come into play, including cultural traditions, professional considerations, and personal preferences. Some individuals choose to keep their maiden names for professional recognition or to preserve their identity, while others opt to take their spouse’s surname as a symbol of unity. Getting married in South Africa does not automatically change your maiden name. Instead, it provides you with the freedom to make a choice that best suits your personal circumstances. Whether you choose to retain your maiden name, adopt your spouse’s surname, combine names, or create a new one, the decision is yours to make, guided by both legal and personal considerations. Ultimately, the most important thing is that the choice feels right for you and your partner as you embark on this exciting journey together. While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes. Powered by Succeed Group
The dos and don’ts for landlords regarding the Rental Housing Act
In South Africa, the Rental Housing Act lays out important dos and don’ts for landlords. By adhering to these guidelines, landlords can maintain positive, lawful relationships with tenants, ensuring a fair and transparent renting experience for all parties involved. Landlords play a crucial role in providing safe and comfortable homes for tenants. In South Africa, the Rental Housing Act (“the Act”) provides guidance on the rights and responsibilities of both landlords and tenants. Understanding the provisions of this Act is essential for landlords to maintain a positive and lawful landlord-tenant relationship. Here are some dos and don’ts for landlords based on the Act: Dos: Provide written receipts: The Act requires landlords to provide tenants with written receipts for all payments received. These receipts should include the address, description of the residence, the purpose of payment (e.g., rent, arrears, deposit), and the payment period. Invest tenant deposits: Landlords are required to place tenant deposits in an interest-bearing account with a financial institution. The interest rate must be at least equal to that of a savings account with a financial institution. Inspect the residence with tenants: Before a tenant moves in, conduct a joint inspection of the residence to identify any pre-existing defects or damages. This inspection helps determine the landlord’s responsibility for repairs. Arrange a joint inspection upon lease expiry: Schedule a date and time to do a joint outgoing inspection with your tenants. The agreed appointment should be within three days before the lease ends, to assess any damages that occurred during their occupancy. Return deposits timely: If the tenant has fulfilled all lease obligations, return the deposit and accrued interest within 14 days of the restoration of the property to the landlord. Keep records: Maintain records of costs incurred for repairs or damages. These receipts should be available for the tenant to inspect as proof of expenses deducted from the deposit. Adhere to lease provisions: Ensure that the terms of the lease are followed by both parties and do not waive the standard provisions outlined in the Act. Include required information in lease agreements: In lease agreements, include details such as the names and addresses of both parties, a description of the residence, rental amounts and escalation, deposit information, the lease period, and obligations for both the tenant and landlord. If the parties enter into a verbal lease agreement, the landlord is obliged to reduce it to writing upon request of the tenants. Don’ts: Don’t delay inspections: Neglecting to inspect the residence with the tenant upon lease commencement or termination can be detrimental. It may be viewed as an acknowledgement that the residence is in good condition, which could hinder any future claims. Should the tenant refuse to respond to the landlord’s request to conduct an inspection, the landlord should inspect the property within seven days after the expiration of the lease agreement to assess any damage or loss which occurred during the tenancy. Don’t deduct costs arbitrarily: Deducting costs from the deposit for repairs without evidence can lead to disputes. The Act requires that costs be proven to the tenant. Don’t overcharge: Charging tenants for expenses related to the contract of lease without factual expenditure is prohibited by the Act. Don’t waive standard provisions: The standard provisions in the Act should not be waived by either the landlord or tenant, as these are in place to protect both parties. Don’t ignore house rules: If there are house rules applicable to the residence, provide the tenant with a copy as an annexure to the lease agreement. Don’t delay deposit refunds: Failure to refund deposits and accrued interest within the stipulated timeframe can lead to conflicts with tenants. Don’t leave the lease agreement to expire: If a tenant remains in the residence beyond the lease expiration date with the landlord’s expressed or implied consent, the parties are deemed to have entered into a periodic lease unless a new written lease is established. Either party can give notice of at least one month to the other party to terminate the lease. It may be more secure to enter into a new lease agreement for a fixed period. The Act aims to ensure fairness and transparency in landlord-tenant relationships. By adhering to its provisions, landlords can create a positive renting experience while safeguarding their rights and those of their tenants. Landlords need to familiarise themselves with the Act, uphold their obligations, and respect their tenants’ rights, as outlined in the Act. Ultimately, compliance with the Act is the key to maintaining harmonious and lawful landlord-tenant relationships. Reference list: Rental Housing Act 50 of 1999 While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes. Powered by SucceedGroup
Can a testator disinherit their surviving spouse?
The Maintenance of Surviving Spouses Act 27 of 1990 permits surviving spouses to seek maintenance from the deceased spouse’s estate upon the marriage ending due to death. This claim lasts until the survivor’s death or remarriage and factors in estate value, the survivor’s financial circumstances, marriage duration, living standards, and age. It is widely recognised that testators have the freedom to distribute their assets as they see fit. However, certain laws, grounded in public policy, limit this freedom. While many legislations restrict the freedom of testation, this article will specifically focus on the Maintenance of Surviving Spouses Act 27 of 1990. When a marriage is in community of property, the surviving spouse automatically receives 50% of the joint estate upon the other’s death due to the nature of the marriage. A will cannot change this entitlement. However, such an exclusion in a will might impact any potential maintenance claim by the surviving spouse. In the Hodges vs. Loubrough case, Didcott J observed that the mutual duty of support between spouses, and the consequent maintenance obligations, arise from their matrimonial bond. Once this relationship ends, either by death or divorce, that duty ceases. The Maintenance of Surviving Spouses Act 27 of 1990 (the Act), changed this common law perspective. The Act, effective from 1 July 1990, was introduced to allow surviving spouses a claim for maintenance against the estate of the deceased under certain conditions. According to Section 2(1) of the Act, if a marriage ends due to the death of one spouse after the Act’s commencement, the surviving spouse can claim from the deceased’s estate for their reasonable maintenance. This claim can continue until the surviving spouse’s death or remarriage, provided that the surviving spouse cannot meet these needs through their own earnings. Section 3 of the Act states that in determining the reasonable maintenance needs the following is taken into consideration: -the amount in the deceased estate available for distribution to heirs and legatees; -the existing and expected means, earning capacity, financial needs and obligations of the survivor; -the subsistence of the marriage; -the standard of living of the survivor during the substance of the marriage; and -the survivor’s age at the date of death. It’s evident that if a marriage ends due to the death of one spouse, the duty of support transfers from the deceased spouse to their estate. This is, of course, assuming the estate has the resources to meet this obligation and the surviving spouse cannot cover their own maintenance needs from personal earnings. Therefore, it appears that individuals can choose to leave their spouses out of their wills, provided the surviving spouses can financially sustain themselves. Reference list: -In Hodges v Coubrough NO -Section 2 of Act 27 of 1990 -Section 3 of Act 27 of 1990 While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes. Powered by Succeed Group
The ABCs of lease agreements in South Africa
Navigating the world of lease agreements can be complex and fraught with potential pitfalls. In South Africa, these agreements are an essential tool for establishing clear expectations and protecting the interests of both landlords and tenants. Whether you’re a seasoned property manager, a first-time landlord, or a prospective tenant, understanding the nuances of these contracts can be critical to ensuring a positive leasing experience. Lease agreements, contrary to the perception of some, are not just a bureaucratic formality. They are a necessity that provides certainty by explicitly outlining the responsibilities of all involved parties. A well-drafted lease agreement reduces the likelihood of disputes arising and provides a solid foundation for resolving them if they do. Without a written agreement, any disagreement could become a “he-said-she-said” scenario, making it challenging to establish the truth of the matter. A common question often asked by landlords is: “What happens if my tenants stop paying rent? Can I evict them?” The answer, typically, should be found within the lease agreement itself, which usually outlines the procedures for dealing with such breaches of contract. However, in the absence of a written agreement, landlords can resort to the Rental Housing Act, which stipulates giving tenants a 30-day notice to vacate the premises. Equally, tenants may wonder what their rights are in cases where their landlord sells the property they’re leasing. Again, the lease agreement comes to the rescue, taking precedence over a sale agreement. In this case, the landlord is obligated to provide at least a 30-day notice to the tenant, allowing them to make necessary arrangements. It’s also important to note that landlords do not have the right to disconnect municipal services due to late or missed payments by the tenant. Such actions are considered illegal, and tenants have the right to institute legal proceedings to restore access to these services. In the event of damage to a rental property, the process of recovery and repair can be made smoother by a well-executed lease agreement. It’s crucial to conduct entry and exit inspections, with both the landlord and tenant present. This allows for a clear record of the property’s condition at the start and end of the lease. A tenant is granted a minimum of seven days from the occupation date to submit a snag list, providing a comprehensive overview of any existing issues. For landlords dealing with the scenario of squatters, it’s important to follow due process as outlined in the Prevention of Illegal Eviction from Unlawful Occupation of Land Act 19 of 1998. It’s illegal to hire a security company, change the locks, or restrict access to municipal services in an attempt to evict these occupants. Instead, a court order must be obtained. But what happens when disputes arise that can’t be resolved amicably? Thankfully, there are avenues for resolution. Claims can be brought to the magistrate’s court in the district where the agreement was signed or where the person defending the action resides. Alternatively, the Rental Housing Tribunal can be engaged, which does not require legal representation and can be a cost-effective solution. The world of lease agreements may seem daunting, but it doesn’t have to be. With a well-drafted agreement and a good understanding of your rights and responsibilities as either a landlord or a tenant, the leasing process can be a smooth and positive experience. Don’t take a chance on a handshake agreement when you can have the security of a professionally drafted lease agreement at your disposal. While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes and should not be construed as legal advice. Powered by SucceedGroup