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
Navigating antenuptial agreements in South Africa: Your questions answered
Preparing for marriage in South Africa involves several critical decisions, one of which is the antenuptial agreement (AN). This legal document is vital for dictating the management of assets and finances within a marriage. To help you understand and effectively navigate antenuptial agreements, we’ve compiled answers to some commonly asked questions. Frequently asked questions about antenuptial agreements What is an Antenuptial Agreement? An antenuptial agreement, commonly known as a prenup, is a legal contract established before marriage, outlining the management of assets and finances during and potentially after the marriage. What are the types of antenuptial agreements in South Africa? With accrual: Shares the growth of each spouse’s estate during the marriage, considering only assets acquired after marriage. Without accrual: Each party retains their individual assets and liabilities, both during and after the marriage, often chosen when substantial assets are involved before marriage. Why is full disclosure of assets important? Full transparency in disclosing all assets and liabilities is crucial for creating a fair and valid agreement. How are future inheritances and gifts treated? The treatment of future inheritances and gifts—whether included in the joint estate or kept separate—should be clearly specified in the agreement. What about debts and liabilities? The agreement should outline how debts incurred before and during the marriage will be managed. How does business ownership affect an AN? The impact of business ownership on the marriage must be addressed, particularly vital for entrepreneurs and business owners. What are the legal requirements for an AN? The AN must be signed, notarised before the wedding, and registered at the Deeds Office within three months of the marriage. Can I draft an AN after getting married? Generally, an AN should be drafted before the wedding. However, changes are possible, but they require a court application and are subject to certain legal procedures. Both parties must agree to the changes. Changing your marital regime after the wedding can be costly, so it is advisable to draft your AN before marriage. How do I know if an antenuptial agreement is fair? A fair antenuptial agreement should reflect the interests of both parties equitably. It’s advisable to have independent legal counsel for each party to ensure fairness and validity. An antenuptial agreement is not just a legal formality; it’s a practical tool for managing your joint financial life. By considering these key points, couples in South Africa can enter into marriage with clarity and confidence about their financial future. Remember, seeking legal advice is essential in ensuring that your antenuptial agreement is fair, valid, and reflective of both parties’ wishes and needs. 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
The intent to revoke a last will and testament
The Western Cape High Court recently examined whether a person had the intent to revoke their existing will. The deceased, hospitalised with COVID-19, expressed a desire to revoke their will and draft a new one. However, the court found that the necessary intent to revoke was absent, emphasising the importance of complying with the Wills Act’s requirements. The question of whether a person had the intention to revoke an existing will was recently considered by the Western Cape High Court in the matter Roux NO and Another v Stemmet NO and Others. The late Mr Stemmet (“the deceased”) executed a will on 23 October 2018 in terms of which his entire estate was bequeathed to his children. In July 2021, the deceased contracted the COVID-19 virus and as a result, he was admitted to the Medi-Clinic in Worcester. On 25 July 2021, the deceased indicated to his farm manager, Gawie Willemse (“Mr Willemse”), that he wished to revoke his 2018 will and requested the latter’s assistance in this regard. On 30 July 2021, assisted by Medi-Clinic personnel, the deceased contacted Mr Willemse via video call. During this video call, the deceased again expressed to Mr Willemse, his wish to revoke the 2018 will and that his final instructions regarding the disposal of his estate were that his entire estate was to be left to the Willemse Boerdery Trust. During the video call, the deceased requested Mr Willemse’s help to engage attorneys to draft a will reflecting his final wishes. After the video call, the deceased was transferred to the intensive care unit of the hospital. In accordance with the deceased’s wishes, Mr Willemse conveyed the deceased’s instructions regarding the disposal of his estate to attorney Louis Benade (“Mr Benade”), to prepare a will in accordance with the deceased’s instructions, as expressed in the video call. Mr Benade did as was requested and on 31 July 2021, provided Mr Willemse with a duly prepared will (“the draft will”). On the same day, Mr Willemse attended the Medi-Clinic to deliver the draft will to the deceased, but he was refused access to the ICU and prevented from delivering it personally to the deceased due to the COVID restrictions in place at the time. Mr Willemse’s request to the hospital personnel to deliver the draft will to the deceased, was refused. Mr Willemse proceeded to leave the draft will in the care of the hospital personnel, with a request that it be delivered to the deceased as soon as possible. During the evening of 31 July 2021, Medi-Clinic personnel attempted to deliver the draft will personally to the deceased, but the latter was unable to receive the document as he had been induced into a coma for purposes of being intubated. The deceased never came out of the coma, never recovered, and died without signing the draft will. The trustees of the trust instituted an action for the 2018 will to be declared revoked under sec 2A(c) of the Wills Act, 7 of 1953 (“the Act”), and the draft will to be his last will. Section 2A of the Act provides that a court may declare a will to be revoked if it is satisfied that a testator, in this instance, the deceased: “…drafted another document or before his death caused such document to be drafted, by which he intended to revoke his will or part of his will and the court shall declare the will or the part concerned, as the case may be, to be revoked.” The court found that the deceased did not personally draft the will, the document which the trustees rely upon as revoking the deceased’s 2018 will and that the drafter was the attorney, Mr Benade. The instruction to Mr Benade to draft the new will was given by Mr Willemse, and not the deceased. The court also found that the deceased never physically received the draft will, never perused it, never approved of its content, and never signed it in the presence of witnesses as required by section 2(1)(a) of the Act. Furthermore, accepting that he was in a coma at the time that the draft will was delivered to him by nursing personnel, it follows that the deceased was unaware of the content and was, at least objectively speaking, not in a position to confirm that the content of the draft will correctly expressed his intentions. Accordingly, the court found that the necessary animus revocandi, the intent to revoke or rescind, was absent. Courts are wary to declare documents that do not comply with the requirements of the Wills Act as valid wills. It is advisable to obtain assistance from an attorney or a fiduciary expert with the drafting or amendment of your last will and testament, as and when your circumstances or wishes change. Reference list: -Roux N.O and Another v Stemmet N.O and Others (17064/2022) [2023] ZAWCHC 222 -Wills Act, 7 of 1953 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
Understanding mortgage bond cancellation: Key steps and considerations
In South Africa, the process of cancelling a mortgage bond is commonly necessitated when a property is sold or the bond is fully paid off. This procedure is intricate, consisting of several critical steps: Step 1: Notice of cancellation Initially, the property owner must submit a notice of intent to cancel the bond to the lending institution. This step typically requires a 90-day written notice. However, there are exceptions to penalty fees for failure to provide this notice, such as when the property is part of a deceased estate, a sequestrated estate, or if a new bond is being taken with the same institution. Step 2: Request cancellation figures Following the notice, a conveyancing attorney should be instructed to request cancellation figures from the lending institution. These figures, which include the outstanding balance, interest due, and service fees, are essential to determine the total amount needed to settle the remaining debt. Step 3: Settle outstanding amounts After obtaining the cancellation figures, the next step is to settle all outstanding amounts. This settlement usually comes from the proceeds of the property sale. It’s important to note that from the date the settlement figures are issued until the bond is officially cancelled, lenders charge interest on the outstanding balance. Also, if insurance premiums are debited from the home loan account, these should be transferred to a different account to ensure continuous coverage after bond cancellation. Additionally, cancellation fees, mainly comprising costs for the Deeds Office process and administrative fees, are handled by the conveyancing attorney and are the responsibility of the seller or bondholder. Step 4: Issue and receive the bond cancellation certificate Once financial obligations are settled, including outstanding amounts and necessary fees, the lender issues a bond cancellation certificate. This certificate is pivotal as it officially indicates that the bond against the property is fully settled with no remaining debts. Step 5: Registration of bond cancellation The bond cancellation must then be registered with the South African Deeds Office, a step typically managed by the conveyancing attorney. This registration is the legal acknowledgement that the bond is removed from the property’s title deed, which is vital for legally freeing the property from the bond. Step 6: Confirmation and finalisation Finally, upon completion of the bond cancellation registration, either the homeowner or the new property owner, if the property was sold, receives confirmation that the process is complete. This typically includes receiving a clean title deed, now free from any bond annotations. The bond cancellation process in South Africa is a meticulous and structured procedure. It starts with notification of intent, proceeds through obtaining and settling financial figures, involves paying legal and administrative fees, and culminates in the legal removal of the bond from the property’s title deed. This comprehensive process is crucial for ensuring clear property ownership transfer and finalising the homeowner’s financial obligations, thereby maintaining the integrity of property transactions and ownership in South Africa. 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