Thoughts Of The Week

Evicting a tenant and the rental housing tribunal | 11 July 2017

Many landlords and tenants make use of the Rental Housing Tribunal to resolve disputes that arise during the existence of a lease. In the Tribunal, parties represent themselves and if legal guidance is needed, a party will consult with his attorney beforehand for advice as to his rights in the matter and the Tribunal’s procedure.

However, the Tribunal may not give an order evicting a tenant. A landlord seeking eviction, must therefore approach a Magistrate or High Court and would usually require the services of an attorney.

The attorney and landlord will follow the procedures of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE), these being designed to provide procedural protection to a tenant before eviction.

Speak to STBB for assistance in any issue flowing from your lease agreement.

Am I entitled to maintenance after divorce? | 04 July 2017

Our common law provides that spouses have a reciprocal duty to support each other during their marriage, which includes financial support. This reciprocal duty ends when the marriage is terminated either by death or divorce. In the event of death, the Maintenance of Surviving Spouses Act allows the surviving spouse to claim reasonable maintenance from the deceased’s estate.

The Divorce Act, on the other hand, makes provision for a spouse to claim maintenance on divorce. Our law does not recognize an automatic right to spousal maintenance post divorce and the Divorce Act states that a court may grant an order for spousal maintenance. The factors that the court will take into account when determining whether or not a maintenance order should be made include: the financial means, earning capacity, financial obligations, needs and age of both spouses, the duration of the marriage, the spouses’ standard of living prior to the divorce, their conduct relating to the breakdown of the marriage and any factor that the court deems relevant.

For more information, contact the STBB Family Law Department.

A Power Of Attorney Can Lapse | 27 June 2017

Whether because of old age or practical necessity, an ageing parent may decide to entrust the management of his affairs to one of his children, by signing a Power of Attorney in their favour. The question that arises is whether such a Power of Attorney would remain operational in the event of the parent becoming incapable of managing his own affairs, for example in an instance where the parent is diagnosed with Dementia or Alzheimers disease.

The answer is no. Our law requires that a curator must be appointed by a court to manage the financial affairs of a person (the patient) who is unable to do so himself due to diminished mental capacity. Essentially, once appointed, the curator bonis steps into the shoes of the patient with regard to the management of his affairs and to the extent provided for in the order of court. This usually includes a duty to manage the patient’s finances and assets, and in need, arrange the correct care for the patient. At all times, throughout the duration of the curatorship, the curator bonis remains accountable to the Master of the High Court in the exercise of his duties.

Contact the professionals at STBB should you require any assistance in appointing a curator for a family member.

Title Deed Conditions: can they be removed and if so, how? | 20 June 2017

There are options available to a home owner who wishes to remove certain conditions from the Title Deed relating to his property.

Generally, the process is determined by ascertaining in whose favour the condition is registered. If, for example, the party in question is a neighbour, cancellation can be registered once the two owners have entered into a notarial deed of cancellation. However, if the condition is in favour of a local authority, application must be made directly to the relevant local authority. Other conditions may be removed by way of an application to the High Court for a court order instructing that the title deed condition be removed.

Contact us at STBB for assistance.

Changing Surnames | 13 June 2017

In terms of the Births and Deaths Registrations Act, no person may assume or describe themselves under any surname other than that recorded in the formal population register, or under which such a person was granted permanent residence in South Africa. Certain exceptions apply, for example:

  1. a woman, after her marriage, may assume the surname of her husband;
  2. a married or divorced woman or widow, may revert to her maiden surname or any prior surname which she legally bore; and
  3. a woman, married or divorced, may join any prior legally held surname to her married name, to form a double-barrelled surname.

A surname may also be amended by making application to the relevant Director General in the prescribed form and showing good cause for the change. If approved the change must be published in the Government Gazette.

Contact STBB should you require assistance.

SUBDIVISION: Things You May Not Know … | 30 May 2017

Property owners sometimes consider subdividing a property in order to benefit financially from selling off portions of their land. There are quite a few steps to follow.

On the one hand, subdivision must be permitted in terms of applicable zoning provisions, local authority by-laws and provincial legislation. The approval of the local authority is therefore an important requirement. Additional requirements may include obtaining the consent of the applicant’s neighbours, or an engineer’s report regarding services if the subdivision is of a complex nature. (In instances where the subdivision relates to agricultural land, ministerial consent is required.)

On the other hand, the status of the land in the deeds registry must be changed. This entails instructing a land surveyor to draw up plans of the envisaged subdivision(s), which are then submitted to the Surveyor General for approval. Only then can a conveyancer lodge an application for registration of the subdivision. Bear in mind that, if the property is bonded, the bondholder’s consent must also be lodged in the deeds office.

Should you consider subdividing, contact STBB for assistance in obtaining the necessary consents and to manage the process on your behalf.

Remember The Importance Of Incoming And Outgoing Inspections | 23 May 2017

Model rental property tenants often morph into nightmare tenants when they move out. Damage left to the property, perhaps also coupled with unpaid utility bills, can wipe out much of the returns that the landlord had hoped to make.

It is therefore advisable to take note of the clear provisions of the Rental Housing Act regarding inspections. It stipulates that as a general rule, a landlord may not charge a tenant for damage to the premises on expiry of the lease if he did not perform both an incoming and an outgoing inspection. This provision is made in fairness to the tenant, who may only be held liable for damage if it occurred during, and as a result of, his tenancy. It is advisable to be very specific in the inspections and photographs taken at the time as these could prove very helpful as points of reference at a later date.

For assistance with rental agreements and disputes, contact the property law experts at STBB.

Alterations To Sectional Title Units | 16 May 2017

As in the case of owners of homes on free-standing erven, from time to time owners of sectional title units also seek to make alterations to their units.

Should the proposed alterations result in an extension of the floor area or boundaries of the unit, certain requirements have to be met. As a first step, the consent of the body corporate is required. Next, the owner is obliged to arrange for plans to be drawn up and approved by the local authority. A land surveyor must then be engaged to draw up sectional plans of extension, for approval by the Surveyor General. Once this has been done, the approved sectional plans must be submitted to the deeds office by a conveyancer for registration.

Failure to follow the above steps could result in extensive delays and could also be an unexpected obstacle in the path of an owner wishing to sell the unit in the near future.

For assistance with all your sectional title enquiries, contact STBB.

Everything Including The Kitchen Sink? | 09 May 2017

-What is a fixture and what is not-

The golden rule of property law in South Africa is that everything built on or attached to the land, forms part of the land. The rule aims to protect land ownership and dates back to the Roman maxim superficies solo cedit, meaning what is on the surface yields to the land.

If a seller wishes to remove an item that is fixed to the property, for example a built-in cupboard or bar counter, then this must be stipulated in the agreement, to avoid any possible future misunderstanding.

Unfortunately, many agreements sell the property without any specific reference to fixtures.

Thus if parties are unsure, the following questions should be asked and the answers taken into account:

  • Is the attachment of a permanent nature?
  • Is it capable of being removed without causing damage?
  • What was the intention of the seller when the fixture was attached?

It is critical to ensure that your sale agreements precisely detail every term and condition to which the parties are agreeing, and this must include fixtures and fittings.

Conveyancing Tariff Increase | 03 May 2017

The Law Society of South Africa has just published tariff increases in conveyancing fees for the registration of transfers, mortgage bonds and other transactions. The increases are effective in respect of transactions received from 01 May onwards and the updated figures are available on our website calculator. Note that:

  • the conveyancing fees for mortgage bonds and transfers are now identical, depending on the value of a property or the value of a loan, although the additional expenses and disbursements differ for the two types of transactions.
  • Where more than one property is included in the same transfer document (for example, two sectional title units or two exclusive use areas), then an additional 15% applies with regard to the second property.

Contact your conveyancer at STBB should you have any queries.