Land Expropriation Bill: What it means for your landownership rights
During 2018, the African National Congress (ANC) announced its intention to drastically speed up the land reform process in South Africa when President Cyril Ramaphosa announced that he would be proposing changes to section 25 of the Constitution of the Republic of South Africa (“the Constitution”) to allow for the expropriation of land without compensation. In essence, expropriation of land occurs when the state takes land away from its owner for public use. Where land is expropriated without compensation, the landowner is not compensated for the value of the property lost. Currently, our Constitution only allows for expropriation with compensation. The proposed changes to the Constitution elicited much debate, as there is a rigorous process to be followed to amend a right such as section 25, which forms part of the Bill of Rights. In terms of section 74(2) of the Constitution, the Bill of Rights may only be amended by the passing of a Bill which must be approved by the supporting vote of at least two thirds of the National Assembly, as well as the supporting vote of at least six of the nine provinces of the National Council of Provinces. Once voted on, the Bill must be drafted and published in the Government Gazette allowing the public 30 days to comment thereon. Only once this 30-day period has passed may the Bill be introduced to Parliament. Importantly, amendments to a right in the Bill of Rights may only be made where they are in line with section 1 of the Constitution and do not stray from matters directly connected to the amendment. Section 1 states that the Republic of South Africa is founded on the value of supremacy of the Constitution and the rule of law. If the rights contained in the Constitution, as the supreme law of the land, were subject to constant change, its overall credibility and reliability would be in danger. The credibility and supremacy of the Constitution are pivotal, especially in light of apartheid which was enabled by the manipulation and strategic interpretation of laws. Following the above-prescribed procedures, the ANC introduced the Land Expropriation Bill (“the Bill”) to Parliament in February 2018. In terms of clause 7(1), an expropriating authority must serve a notice of intention to expropriate on the owner of the land and any other person who may hold a right in the property. Clause 7(2) specifies what is to be included in such notice. There is a misconception that the Bill allows for the expropriation of land without compensation immediately and without recourse to the owner of the land or any person who has rights therein. This is incorrect. The Bill requires the landowner and the expropriating authority to negotiate and reach an agreement as to the amount of compensation payable to the landowner. Only once such an agreement of compensation payable cannot be reached, and 40 days have passed, may the expropriating authority decide whether or not to proceed with the expropriation. Clause 12 states that the amount of compensation to be paid to a landowner must be just and equitable and reflect an equitable balance between the public interest and the interests of the landowner. Notably, clause 12(3) of the Bill states that it may be just and equitable for nil compensation to be paid to the landowner where land is expropriated in the public interest. In sum, the Bill entitles an expropriating authority to expropriate land against a payment of compensation determined in terms of clause 12 of the Bill. This means that the compensation awarded must be just and equitable, which, where it is in the public interest, may be nil. Reference List: The Constitution of the Republic of South Africa, 1996. Draft Expropriation Bill, 2019. https://irr.org.za/reports/submissions-on-proposed-legislation/synopsis-of-submission-on-2019-expropriation-bill-19-02-19.pdf https://businesstech.co.za/news/government/284510/section-25-amendment-south-africas-historical-moment-in-the-land-debate/ https://www.biznews.com/thought-leaders/2018/08/08/changing-sa-constitution-pierre-de-vos This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)
Moving out? What tenants need to do before moving out
We all know that moving can be stressful and time-consuming, but before you start packing your boxes, there are certain things that you need to keep in mind before move-in day. As stressful and time-consuming as moving might be, it can also be exciting as you are moving on to better and greater things. However, as a tenant, there are certain things that you need to keep in mind before you move into your new dream home: Lease agreement: You’ve thought about moving for some time, and finally decided it’s time to move out of your current home. But first, make sure to review your lease agreement and familiarise yourself with all the terms and conditions therein. For example, it’s very important to know how long your required notice period is. Once you have familiarised yourself with all the terms and conditions, you will have a much better understanding of what is expected of you before you move out. Letting your landlord know: Most lease agreements stipulate that a tenant must give at least one month’s written notice before moving out. So, make sure to prepare your notice and communicate this to your landlord within the appropriate timeframe. In your notice, you can stipulate what date you will be moving out, what you might need in order to restore the property to its original state and you can request your deposit. However, if you plan on cancelling your lease early, make sure to request and receive permission from your landlord prior to moving out. If you don’t do this, legal action can be taken against you. Inspect the property and fix any damages caused by you: Depending on your lease agreement, you could be the one responsible for returning the property to its original state before you move out. That is why it is so important to be familiar with the terms and conditions found in your lease agreement. You need to inspect the property and look for any damages that could have been caused by you or damages that occurred while you were occupying the property. Make sure to take care of these damages, otherwise, your landlord could keep your deposit or only pay back a portion of it in order to pay for repairs. Sort out all accounts linked to your property: Before moving into your new home, make sure that all accounts linked to your previous home have been cancelled or moved and that you do not owe anything. These accounts include electricity, water, Wi-Fi, TV subscriptions etc. Also, ensure that all your service providers are aware of the move and provide them with your new address. As a tenant, your home was never really yours, however, it remains your responsibility to ensure that the property is restored to its original state. Think to yourself, “Would I be happy if I received the property in this state?” It is recommended not to overlook these steps, as it will help to make the whole moving process run a lot smoother and you will get your deposit back quicker. It’s a win-win situation for both the tenant and the landlord. This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)
Landlords & tenants: Can a tenant cancel a lease?
When it comes to cancelling a lease early, both landlords and tenants must be aware of their responsibilities. It’s important to note that the Consumer Protection Act (CPA) has been put in place to protect consumers and it has changed the way that South Africans do business. The CPA also protects tenants in cases where they want to cancel a lease early. According to the CPA, if a tenant provides the landlord with 20 business days’ notice, the tenant has every right to cancel the lease early. However, this does not mean that a tenant can just pack his/her bags and leave the property without facing some sort of penalty or financial repercussion. These penalties and financial repercussions can include a fair cancellation fee, cost of advertising as the landlord would have to advertise to find a new tenant to take the place of the old tenant, and any other costs deemed reasonable in the case that a landlord cannot secure a tenant in such a short time period. It’s important to note, although a landlord can expect the abovementioned payments, a landlord cannot, under any circumstances, withhold a tenant’s deposit or expect the tenant to pay rent for the remainder of the lease. A landlord can also not charge a ridiculous and unreasonable cancellation fee. Additionally, a landlord may not withhold the deposit instead of charging a cancellation fee. Landlords tend to think that they can withhold deposits for almost any reason, and this is most certainly not the case. Unfortunately, there are landlords who ignore the CPA and insist that the tenant pay rent until the lease comes to an end when a tenant cancels the lease early. So, is there anything a tenant can do if the abovementioned is the case? Yes. A tenant can approach the National Consumer Tribunal for assistance or contact the Rental Housing Tribunal. Tenants need to ensure that they read the lease agreement very carefully before signing and to also make note of any provisions made in the lease agreement concerning the early cancellation of the lease as per the CPA. It is expected of landlords to be up to date and aware of the provisions laid out for early cancellation of the lease, but some are not, and this can cause immense problems for tenants. If your prospective landlord refuses to recognise the fact that you may cancel your lease early, consider renting another property. Also, consider renting a different property if the landlord insists on harsh repercussions in the case of early cancellation of the lease. This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)
Awaiting your deposit
What to know when your landlord has your deposit and has failed to pay it out You have viewed the new property and secured it by paying the correct deposit amount to the landlord. With the transition into your new space being as breezy as it was, no red flags were raised as to how your landlord could trick you going forward. How do you approach a situation where your landlord won’t pay you back your deposit after you move out? Firstly, a pre- and post-occupation inspection of the rental space must be completed before and after the tenant moves in. This inspection is the landlord’s responsibility and if he or she does not conduct the said inspection, they are then unable to claim against the tenant upon the lease expiration. The Rental Housing Act states that the tenant has the right not to have their home or property searched by the landlord, and thus, the landlord must give reasonable notice for inspection 3 days before the lease ends. Regarding deposits, section 5 of the RHA states that, should there be damages incurred by the tenant under the said lease needing repair after the post-occupation inspection, the landlord must refund the remaining deposit amount, if any, to the tenant within 14 days. In the case where no claims for damages have been made by the landlord, and the tenant is debt free in terms of charges and rent, the deposit must be refunded within seven days following the lease expiration. A tenant who refuses to take part in the inspection process, and damages have been found, is liable to receive their remaining deposit 21 days from the expiration of the lease. If a landlord refuses or has failed to refund the tenant their deposit, the tenant may approach the Rental Housing Tribunal. References Rental Housing Act No. 50 of 1999. (2017). [PDF] Cape Town: Republic of South Africa, pp.6-7. Available at: https://www.gov.za/sites/www.gov.za/files/a50-99.pdf [Accessed 20 Nov. 2017]. This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)
Title deeds when buying or selling property
If you’re planning to buy a new property, you’ll need to get the title deed transferred into your name to prove that you’re the owner of the property. You’ll need the assistance of a lawyer specialising in property transfers (also known as a conveyancer) to help you transfer the title deed into your name. You’ll only become the owner of the property when the Registrar of Deeds signs the transfer. After it’s been signed, a copy of the title deed is kept at the Deeds Office closest to you. How long does it take? A search may take 30 to 60 minutes. In some of the larger offices, the copy of a deed is posted or it must be collected after a certain period of time. To obtain a copy of a deed or document from a deeds registry, you must: Go to any deeds office (deeds registries may not give out information acting on a letter or a telephone call). Go to the information desk, where an official will help you complete a prescribed form and explain the procedure. Request a data typist to do a search on the property, pay the required fee at the cashier’s office and take the receipt back to the official at the information desk. The receipt number will be allocated to your copy of title. Fortunately, a conveyancer will help you with the process so that you don’t have to worry about all the paperwork yourself. You should contact your legal advisor to find out more. Reference: Western Cape Government, Title Deeds: Proof of Property Ownership, https://www.westerncape.gov.za The Department of Rural Development and Land Reform, http://www.dla.gov.za/ This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)
Sectional titles: What is the role of the body corporate?
When it comes to sectional title schemes, there is still widespread misunderstanding of even the basics, starting with the body corporate and how it is established, as well as what its functions and powers are. This misunderstanding often gives rise to many problems and disputes in sectional title schemes which could quite easily have been avoided. What is a sectional title? A Sectional Title Development Scheme, usually referred to as a “scheme”, provides for separate ownership of a property, by individuals. These schemes fall under the control of the Sectional Titles Act, which came into effect on 1 June 1988. When you buy a property that’s part of a scheme, you own the inside of the property i.e. the space contained by the inner walls, ceilings & floors of the unit. You are entitled to paint or decorate or undertake alterations as desired, providing such alterations do not infringe on municipal by-laws. What is the body corporate? The Body Corporate is the collective name given to all the owners of units in a scheme. Units usually refers to the townhouses or flats in a development. The body corporate comes into existence as soon as the developer of the scheme transfers a unit to a new owner. This means that all registered owners of units in a scheme are members of the Body Corporate. The Body Corporate controls and runs the Scheme. Day-to-day administration of the Scheme is vested in trustees who are appointed by the Body Corporate. Major decisions regarding the Scheme are made by the Body Corporate, usually at the annual general meeting (AGM), or at a special general meeting (SGM). At these meetings, matters, which affect the Scheme, are discussed, budgets are approved, rules can be changed and trustees are appointed. Each member of a Body Corporate is entitled to vote at these meetings, providing that the member is not in arrears with levy payments or in serious breach of the rules. The Body Corporate exists to manage and administer the land and buildings in the scheme. This means, that the Body Corporate is required to enforce the legislation and rules in the Sectional Titles Act, the Management Rules and the Conduct Rules of the scheme. Amongst their other duties, the Trustees manage the Body Corporate’s funds, enforce the rules and resolve conflict to the best of their ability. References: http://www.angor.co.za/news/understanding-sectional-title-terminology-body-corporate/ http://www.sectionaltitlecentre.co.za/faqs.aspx http://www.bizcommunity.com/Article/196/568/161017.html This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)
My tenant failed to pay rent: Can I kick him out?
If your tenant has failed to pay his or her rent, it can be tempting to simply kick them out yourself and change the locks. However, do so would be considered illegal, even if the tenant has become an illegal occupant. The reason is because of the PIE Act. In sum, the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) (1998) provides procedures for eviction of unlawful occupants and prohibits unlawful evictions. The main aim of the Act is to protect both occupiers and landowners. The owner or landlord must follow the provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) (except in areas where ESTA operates) if they want to evict a tenant. Who is covered? Anyone who is an unlawful occupier, which includes tenants who fail to pay their rentals and bonds, is covered by PIE. It excludes anyone who qualifies as an ‘occupier’ in terms of the Extension of Security of Tenure Act When is an eviction lawful? For an eviction to happen lawfully, certain procedures must be followed. If any one of them is left out, the eviction is unlawful. So, if an owner wants to have an unlawful occupier evicted, they must do the following: give the occupier notice of his/her intention of going to court to get an eviction order. apply to the court to have a written notice served on the occupier stating the owner’s intention to evict the occupier. The court must serve the notice at least 14 days before the court hearing. The notice must also be served on the municipality that has jurisdiction in the area. After a landlord intrusts their attorney to commence eviction proceedings, the following happens: Typically, (except in a case of urgency, e.g. if the tenant is maliciously damaging the leased premises because he got notice to vacate) the attorney will call on the tenant to remedy the breach (usually failure to pay rent on time); If the tenant fails to deal with the demand, the tenant will be considered to be in illegal occupation of the property; The attorney then applies to court for permission to begin the eviction process. The court gives a directive as to how and on whom notice of eviction should be served; The attorney doesn’t give the tenant notice at this time; The application to court sets out the reasons for the application and the personal circumstances of the occupants; If the courts are satisfied that it is fair to evict the tenant and all persons occupying the property with him, it gives a directive as to how the application for eviction must be served; The sheriff then serves the notice of intention to evict on the tenant and the Local Municipality; The occupants have an opportunity to oppose the application, and explain why they should not be evicted; If there is opposition, the matter gets argued before a magistrate or judge, who decides whether an eviction order can be granted, and if so, by when the occupants should vacate the property within a stipulated time; If the tenant does not oppose, the court will grant the eviction order; If the tenant fails to move, the attorney will apply to Court for a warrant of ejectment to be issued by the Court. This process can take a further three to four weeks. Reference: http://www.passop.co.za/your-rights/housing-rights-pie http://www.bregmans.co.za/can-evict-tenant-without-court-order/ This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)
Why is my property transfer taking so long?
After signing a deed of sale, the purchasers often want to move into the property as soon as possible. When they are informed of the process involved prior to the property being transferred this may damper their excitement. There may also be delays in the transaction. In order to avoid unnecessary frustration, it is vital that parties to the transaction understand the processes involved and that delays are sometimes inevitable. The deed of sale will normally be the starting point in a transaction for a conveyancer who has been instructed to attend to the transfer. This conveyancer is also known as the transferring attorney and is normally the main link between the other attorneys involved the transfer transaction. Postponements, delays and interruptions A major role of the conveyancer is informing any mortgagees, for example banks, about the transfer so that any notice periods for the cancellation of bonds can start running. The notice period is usually up to 90 days. The transfer may be delayed as a result of this notice period. Obtaining the various certificates, receipts and consents applicable to the transaction in question also takes time. Examples of these is the rate clearance certificate, transfer duty receipt, homeowners’ association’s consent to the transfer, levy clearance certificate, electrical compliance certificate and plumbing certificate. The time it takes to obtain these certificates will differ from case to case. After an inspection by a plumber or electrician, for example, it may be found that certain work needs to be carried out before the certificates will be issued. Once all the documents are lodged at the Deeds Office by the conveyancer, an internal process is followed, which has different time frames in the various Deeds Offices. This time frame can also vary in a particular Deeds Office. It is best to enquire from your conveyancer what the Deeds Office time frame is at any given stage. There are many ways in which the transfer process could be delayed, these are just some of the examples. If you feel that the process is taking too long, then you should contact your conveyancer. Reference: Aktebesorging, UNISA 2004, Department Private Law, Ramwell, Brink & West This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)
When can the municipality disconnect my water and electricity?
The municipality is the place where most, if not all, services are monitored for their availability to a property, and it is the very place that may cut off the supply of said services. Their authority does, however, come with the responsibility of remaining within the legal boundaries of managing the supply of services to properties. This article will explore the legalities of disconnecting water or electricity. Accounts in arrears If one of your municipal services is in arrears, the municipality is well within their rights to disconnect whatever service when there are undisputed arrears owed to any other service in connection with the related property. Before any disconnection takes place, there is a procedure for the municipality to follow. Notices The municipality is legally obligated to give a notice to the person responsible for the account. A minimum of 14 days written notice of termination is required for water and electricity accounts in arrears and if the notice period is shorter than 14 days, or not supplied, the disconnection is illegal. The 14-day notice gives the responsible party an opportunity to present any disputes or queries they may have regarding the account or allow them to repay the arrears. The query period Once a query relating to the account has been put in, the municipality may not disconnect services provided that the amount being queried is equal to the amount in arrears. In the case where the amount is less that the amount in arrears, the service may be disconnected for the undisputed amount owing. Payment of arrears When a query has been logged, it can only be valid for so long provided that the monthly bill or any other related payments are being made to the respective account. If the responsible person does not make any form of payment, the service may be disconnected even if a logged query exists with the municipality. State where the payment should go If there is an account dispute and the responsible person makes a payment to the municipality, the municipality may choose to allocate that money to any account they wish to do so. This means the account in need of the payment may not have the payment made into it. To curb this, the responsible person must notify the municipality, in writing, of the payments being made as well as which account they should be allocated to. This must be done before payment is made. This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)
How do I cancel a lease?
What happens when a landlord or a tenant wants to cancel a lease? What rules and what legislation apply? What protection does the law provide? If you want to end your lease early, this can be done in situations where: the Consumer Protection Act or Rental Housing Act applies, or there’s a clause in the contract that allows for early cancellation, or if both parties agree to it. If, on the other hand, one of the parties wants to cancel because the other is in breach of the contract, then certain notice periods come into effect – the first of which being, of course, that the aggrieved party is required to give written notice for the breach to be remedied. For tenants If your landlord is in material breach of the lease, then cancelling your lease early will not be in breach of the contract. If your landlord has met all the conditions of the lease and you decide to cancel your lease early, you will be in breach of contract unless the termination of the lease has been mutually agreed upon. Speak to your landlord before making any rushed decisions, chances are, you may be able to come to a mutual agreement whereby you are able to find a replacement tenant or sublet the property for the remainder of your lease. For landlords Firstly, look to the provisions of the lease itself. Most leases contain a breach clause, which indicate a period of a number of days that are necessary to be given as notice to the tenant of a breach. If there is no breach period specified, it will be a ‘reasonable period’ in terms of the common law. If you give notice of the breach, and it is not remedied in the breach notice period, this means that you can take action to sue for whatever is owed or even issue summons and attach the tenant’s goods by evoking your landlord’s hypothec, but you cannot cancel the lease and evict. When it comes to cancelling agreements, it is always best to consult a legal expert since doing something from your own understanding and experience could lead to a court case. References: https://www.privateproperty.co.za/advice/property/articles/how-to-cancel-a-residential-lease/3315 http://www.schindlers.co.za/how-to-cancel-a-residential-lease/ https://www.privateproperty.co.za/advice/property/articles/terminating-your-lease-agreement/3551 This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)