Co-owning property with someone else: the ups and downs

What is co-ownership?

Co-ownership involves that two or more people jointly own the same property, for example land. In essence, they legally share ownership without dividing the property into physical portions for their exclusive use. It is thus commonly referred to as co-ownership in undivided shares.

It is possible to agree that owners acquire the property in different shares; for instance, one person owns 70 percent and the other 30 percent of the property. The shares appear from the title deeds registered in the Deeds Office.

The benefits:

In the case of a residential property, the bond repayments and costs of maintaining the home are halved. However, there can be problems, for example when one of the parties involved wants to sell and move, but the other not.

The risks:

If ownership is given to one or more purchasers, without stipulating in what shares they acquire the property, it is legally presumed that they acquired the property in equal shares.

The risks, the benefits and the obligations that flow from the property are shared in proportion to each person’s share of ownership in the property.

The agreement:

If two people own property together in undivided shares it is advisable to enter into an agreement which will regulate their rights and obligations, and also what happens should they decide to go their own separate ways.

The practical difficulties that flow from the rights and duties of co-ownership are captured by the expression communio est mater rixarum or “co-ownership is the mother of disputes”. It is therefore important to agree on the respective rights and obligations, including the following matters:

  1. In what proportion will the property be shared?
  2. Who has the right to occupy the property?
  3. Contributions to the initial payment to acquire the property.
  4. Contributions to the ongoing future costs related to the property.
  5. How the profits or losses will be split, should the property or a share be sold.
  6. The sale of one party’s share must be restricted or regulated.
  7. The right to draw funds out of an access bond over the property.
  8. The consequences of a breakdown of the relationship between the parties.
  9. Death or incapacity of one of the parties.
  10. Dispute resolution procedures.
  11. Termination of the agreement.

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)

References:

Co-ownership of property: what you need to know


http://www.privateproperty.co.za/advice/property/articles/the-pitfalls-of-property-co-ownership/5046
http://www.jgs.co.za/index.php/property/owning-prop-jointly-the-do-s-and-dont-s

How can a person get married in South Africa?

A person can get married by way of a civil marriage, customary marriage, civil union or religious marriage. A religious marriage is not recognised as a valid marriage, unless a marriage officer officiates, but the spouses in a religious marriage can be protected by law in certain instances.

What are the general requirements for a valid marriage?

  1. Both persons to the marriage must give consent to get married and must be older than 18 years of age.
  2. A person younger than 18 years of age, needs the permission of his/her parent/s or guardian/s to get married.  No person younger than 18 years of age can enter into a civil union.
  3. The marriage must be lawful in terms of rules such as the following:
    1. Persons who are closely related (such as brother or sister, or parent and child) may not get married.
    2. A person may not be party to more than one marriage at a time, except for customary marriages.
  4. Certain formalities must be adhered to, such as that the marriage must be concluded by a marriage officer in the presence of two witnesses.
  5. A marriage must be registered at the Department of Home Affairs.

The difference between marriage in and out of community of property:

  1. MARRIAGE IN COMMUNITY OF PROPERTY:  There is one estate between a husband and a wife.  Property and debts acquired prior to or during the marriage are shared equally in undivided shares (50%).  Both spouses are jointly liable to creditors, with certain exceptions.
  2. MARRIAGE OUT OF COMMUNITY OF PROPERTY WITHOUT THE ACCRUAL SYSTEM:  The spouses have their own estates which contain property and debts acquired prior to and during the marriage (“what is mine is mine and what is yours is yours”).  Each spouse is separately liable to his/her creditors.  Prior to the marriage, an antenuptial contract must be entered into to indicate that the marriage will be out of community of property.
  3. MARRIAGE OUT OF COMMUNITY OF PROPERTY WITH THE ACCRUAL SYSTEM:  This is identical to a “marriage out of community of property”, but the accrual system will be applicable.  The accrual system involves the calculation of how much the larger estate must pay the smaller estate once the marriage comes to an end through death or divorce.  Only property acquired during the marriage can be considered when calculating the accrual.  The accrual system does not automatically apply and must be included in an antenuptial contract.

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)

References:
https://www.legalwise.co.za/help-yourself/quicklaw-guides/marriages/

Adopting a child in South Africa

Adoption is the legal act of permanently placing a child with a parent or parents other than the child’s birth mother or father.
A legal adoption order ends the parental rights of the birth mother and father and places the parental rights and responsibilities with the adoptive parents.There are 4 phases in the adoption process:

1. Application

In South Africa, the only way in which you can legally adopt a child is by working through an accredited adoption agency, or with the assistance of an adoption social worker, functioning within the statutory accredited adoption system.

When working through an adoption agency, the process usually starts with the prospective adoptive parents submitting an application to the agency.
Each agency has its own set of requirements – it’s a good idea to phone the particular agency to get their set of criteria before you actually apply in writing.

2. Screening process

All prospective adoptive parents are required to undergo a screening and preparation process. This normally involves:

  • orientation meetings,
  • interviews with a social worker,
  • full medical examinations,
  • marriage and psychological assessments,
  • home visits, and
  • police clearance and the checking of references.

The screening process allows social workers to get to know prospective adopters as a family, their motivation to adopt and their ability to offer a child a warm, loving and stable home.

3. Waiting list

Once the screening process is complete, applicants are placed on a waiting list for a child. Applicants have their own ideas and wishes about the child they wish to adopt.

They can decide about the age and sex of the baby or child they would like to adopt, and adoption agencies will try to meet those personal expectations.

4. Placement

The official placement of the child with the adoptive parents is a legal process, carried out through the Children’s Court.

Once the child has been with the new parents for a period of time, and the social worker has assessed the adoption to be in the best interests of the child, the adoption is finalised through the Children’s Court.

The child then becomes the legal child of the adoptive parents as if the child was born to them and has all the same rights as a biological child.

The position of an adopted child is the same as that of a biological child of the adoptive parent/s and all parental rights and responsibilities his/her biological parent/s or previous legal guardian/s had will be terminated. The adoptive child takes the surname of the adoptive parent/s (unless the Children’s Court decides otherwise). An adoption will not affect the adoptive child’s rights to property s/he obtained before the adoption.

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)

References:
https://www.legalwise.co.za/help-yourself/quicklaw-guides/adoption/
https://www.westerncape.gov.za/service/adopting-child

Don’t let the smoke leave you broke: Farmers’ duties regarding fires

The National Veld and Forest Fire Act No. 101 of 1998 (“the Act”) is a legislative tool to help farm owners prevent potential financial and infrastructure losses as a result of fire. The definition of an “owner” in the Act includes a lessee or other person who controls the land in question. This article seeks to summarise a farm owner’s responsibilities in terms of the Act.

1. FIRE PROTECTION ASSOCIATIONS (“FPA”)

The Act provides for the formation of a FPA by landowners. The duties of a FPA include predicting, preventing, managing and extinguishing veldfires. They do not however fulfil the role of the fire brigade services. In order to register a FPA, the applicant must be capable of performing the duties imposed on a FPA and the applicant must be representative of owners in the area. The word “area” is not defined in the Act, but the act states that a FPA may be formed by owners who wish to co-operate in respect of an area which has regular veldfires, a relatively uniform risk of veldfires, a relatively uniform climatic conditions, or relatively uniform types of forest or vegetation. Only one FPA may be registered in respect of an area. The municipality and the owners of state land which fall within the area are obliged to become members of a FPA. The Chief Executive Officer of a FPA is the Fire Protection Officer and has the right to enter onto the land of a member of a FPA on reasonable notice, to carry out his duties.

The advantages of being a member of a FPA are that Institutions like RSA Agri, Agri Western Cape and insurance companies support, and in some cases require active participation in an FPA. IPW, GLOBALGAP and HACCP accreditations require membership.

The Winelands FPA was registered with the Department of Agriculture, Forestry and Fisheries in November 2014 amalgamating the former Stellenbosch, Tulbach/Wolseley, Witzenburg, Ceres/Kouebokkeveld and Warmbokkeveld FPAs. To become a member of the Winelands FPA you can download its application form at http://winelandsfpa.co.za/become-a-member/. A once off joining fee of R200.00 and an annual fee of R650.00 is payable for private land owners.

2. FIREBREAKS AND INVASIVE ALIEN PLANT CLEARING

The Act places a duty on landowners to prepare and maintain firebreaks on their side of the boundary to adjoining land. If an owner intends to prepare and maintain a firebreak by burning, the owner must determine a mutually agreeable date with the owners of the adjoining land for doing so, and inform the FPA of the area, if any. If an agreement cannot be reached, such owner must provide the owners of the adjoining land and the FPA for the area (if any), at least 14 days written notice of the period during which the owner intends burning firebreaks. An owner must ensure that a firebreak is wide enough and long enough to have a reasonable chance of preventing a veldfire from spreading to or from neighbouring land, does not cause soil erosion and it is reasonably free of inflammable material capable of carrying a veldfire across it.

The rules of the Winelands FPA state that members must systematically remove invasive alien plants accordingly using the methods prescribed in their rules, as they increase the fuel load of the fire. You can apply through the Winelands FPA for a burn permit for controlled or prescribed burning for the Stellenbosch, Drakenstein, Witzenberg, Breede Valley and Langeberg Municipal areas. Controlled burning is authorised only on Weekdays between the hours of 06:00 and 16:00 for the period from 1 May until 31 October annually.

3. FIRE FIGHTING

The Act places a duty on all owners to acquire equipment, protective clothing and train personnel for extinguishing fires that is reasonably required in the circumstances. Duties of a FPA include organising and training its members in fire fighting, management and prevention; and informing its members of equipment and technology available for preventing and fighting veldfires. A list of the Wineland FPA’s minimum prescribed equipment and protective gear can be found in its rules here. The Winelands FPA requires members or occupiers of land or their staff performing fire fighting to be trained in a basic veldfire fighting course by an accredited training institution and the prescribed modules for the course can also be found at the aforementioned link. The Cape Winelands District Municipality assisted by the Winelands FPA will conduct initial fire training for members and their staff at no cost.

An owner who has reason to believe that a fire on his or her land or the land of an adjoining owner may endanger life, property or the environment, must immediately take all reasonable steps to notify the FPA and the owners of adjoining land and do everything in his or her power to stop the spreading of the fire.

4. OFFENCES

Any person who fails to meet the requirements regarding firebreaks, fire fighting or who prevents a fire officer from doing their work is guilty of an offence under the Act and the abovementioned negligence amounts to fault. The person may be sentenced on a first conviction for that offence to a fine or imprisonment for a period of up to two years, or to both a fine and such imprisonment.

5. DELICTUAL LIABILITY

One of the advantages of being a member of a FPA is that you are presumed not negligent in civil proceedings for veldfires that started on, or spread from your property, in terms of section 34 of the Act. This presumption does however not mean that a third party cannot succeed with a delictual claim against you for the damages suffered by that party. In order to be liable for a delict, the claimant must prove the elements of a delict which are conduct (including omission), wrongfulness, negligence, causation and damage.

Before the presumption can apply, the claimant must prove that damages were caused by a veldfire. “Veldfire” is defined in the Act as a veld, forest or mountain fire. In Van der Eecken v Salvation Army Property Co, 2008 (4) SA 28 (T) the word “veldfire” included starting a fire on the “veld” portion of partly-cultivated land. In Boerdery BK v Transnet Ltd, 2005 (5) SA 490) (SCA) a fire broke out on a railway and from there spread to neighbouring property where it caused damages. The claimant could not rely on the presumption of negligence as the court ruled that the word “veldfire” is defined as the burning of veld and includes unoccupied and uncultivated portions of land which is distinct from the portion which is cultivated, occupied and built upon.

5.1 CAN MEMBERSHIP OF A FPA PER SE CREATE LIABILITY

A question which arises is whether a party who suffered loss due to a veldfire within the area of a FPA, can take legal action against a member of the FPA to recover his/her losses, where a FPA did not prevent a fire from spreading. That is whether membership of a FPA per se can create a liability. The duty to prevent fire spreading appears to be restricted to landowners and occupiers. In Van Wyk v Hermanus Municipality 1963 (4) SA 285 (C) a fire broke out on the land of a third party and the municipality was held to be under no obligation to extinguish the fire. Therefore it can be argued that there can be no negligence if there was no duty of care for the FPA. Furthermore as a FPA is created by statute it appears to have juristic personality and limited liability. Accordingly it would be unlikely that the members of the FPA would be held liable in their personal capacities for the damages. However no case has been reported in which a FPA has been sued, nor its members in their capacity as members of an FPA.

5.2 DUTY OF CARE TO NEIGHBOUR

In the case King v Dykes, 1970 (4) SA 369 (RS) a fire was observed on a farm adjacent to the defendant’s farm. During the night the fire crossed the river onto the defendant’s farm and, after burning out a small patch of veld covered sparsely by grass, died down at its own accord. Early the following morning the defendant visited the scene to inspect the fire, and found that apart from smouldering debris it was no longer burning. He believed there was no further danger from it and returned to the headquarters on the farm. While loading tobacco for conveyance, a thin spiral of smoke was observed in the general direction of the fire. It was important for the defendant to complete the loading of his tobacco, and as a result it was only some 20 to 30 minutes after the smoke had been first observed that the defendant, with his employees, returned to the scene to extinguish the rekindled fire. Due to a strong wind, his efforts to do so were unavailing, and it spread to the plaintiff’s property. The appeal court laid down that there was a legal duty on a farmer who had not started the fire but onto whose land the fire had spread from an adjoining property, to take reasonable steps to fight the fire and to try to prevent it from spreading. Here an undoubted moral duty was translated into a legal duty. The case explained that the idea that prevailed in the past that ownership of land conferred the right on the owner to use his land as he pleased was giving way to a more responsible approach that an owner may not use his land in a way prejudicial to his neighbours or the community and that he holds the land in trust for future generations.

5.3 VICARIOUS (STRICT) LIABILITY FOR ACTION OR OMISSION OF EMPLOYEES

Where an employee, acting within the scope of his employment, commits a delict, the employer is fully liable for the damages. It is a form of strict liability as fault by the employee is not required. There must be an employer-employee relationship at the time when the delict is committed. In Viljoen v Smith, 1997 (1) SA 309 (A), a farm worker went onto the neighbouring farm to relieve himself and started a fire when lighting a cigarette. The question was whether he deviated from acting in the scope of his employment and acted in advancement of his personal interest. This is a decision based on the facts of each case and it is a question of degree. Even when an employee makes a deviation solely for his own purposes, the employer may remain liable for any negligence committed by the employee. The employer was held vicarious liable for the damages that the fire caused to the neighbouring property.

6. INSURANCE

It is important to annually update your insurance policy. Farm owners need insurance against fire damage to crops, assets as well as natural rangeland and pastures. Your asset cover should include buildings, machinery and equipment, damage to stock (including livestock), loss of income, vehicles and funeral expenses. Owners must make sure that they specifically request cover for fire spreading to plantations or sugar cane if they are on neighbouring properties. Should a fire start on your farm and then spread to neighbouring farms, the owner should be covered for damages for which the owner may become legally liable for. Insurance cover can include all reasonable fire extinguishing costs and expenses to prevent the spreading of such fire beyond the borders of the insured’s own premises.

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)

Interest free loans to trust – not so free anymore?

By Sisteen Geyser

If a Trust owes you money on loan account and the loan is interest free, or the interest rate charged on the loan is below the official rate of interest (currently 8%), you will be liable for donations tax on the deemed interest on the loan from 1 March 2017.

The new tax legislation was imposed to reduce the use of trusts in estate planning which traditionally has the effect of reducing estate duty and donations tax.

Sec 7C of the Income Tax Act is applicable to all interest free or low interest loans (affected loans), including loans in existence, made to a trust directly or indirectly by a natural person, or company that is a connected person in relation to that natural person, and means the interest foregone will be treated as an ongoing and annual donation made to the trust.

Typically, this will be applicable where a person sold an asset to a trust on loan account at a rate lower than the official rate, and/or where the trustees of a trust made a distribution to trust beneficiaries and the beneficiaries loaned the money back to the trust.

There are a few exceptions to this rule:

  • A loan made to a Trust that was used to buy a residence that is used by the lender or the lender’s spouse as a primary residence.
  • Loans to Special Trusts that are created solely for the benefit of minors with disabilities.
  • A loan by a trust beneficiary to a trust that qualifies as a bewind trust, i.e. a trust that holds and administers assets, the ownership of which vests in that beneficiary, for and on behalf that beneficiary.
  • Loans to Public Benefit Organisations Trusts.
  • Depending on the exact terms of the Trust Deed, some loan accounts in respect of distributions to beneficiaries may also not be subject to the deemed donation tax.

The common practice of reducing the lender’s taxable assets by cancelling or waiving the loan to the trust has also been affected by the legislation, which now provides that no deduction, loss, allowance or capital loss may be claimed in respect of interest free loans or low interest loans made to trusts.

However, the annual Donations Tax exemption of R 100 000 will still apply to the deemed donation in terms of Sec 7C, so that donations tax will not be payable if the deemed interest on the loan is less than R 100 000 per year.

Should you have such an affected loan account with a trust, we urge you to contact our Trust and Estate Planning Department. We can check the trust deed and the way in which existing loan accounts came about; and advise on how distributions to the beneficiaries should in future be made, in order to reduce the adverse effects of this new legislation.

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)

Trusts – What records should be kept and who can request information about trusts?

By Sisteen Geyser

Ever wondered what records should be kept by trustees and whether you can request documents or details from the Master of the High Court, or from the trustees themselves?

What are a trustees’ record-keeping duties?

The Master may issue a written request to Trustees to account to his/her satisfaction and in accordance with his/her requirements about the trustees’ administration and disposal of trust property in terms of Section 16 of the Trust Property Control Act.

The Master may ask that any book, record, account or document relating to the trustees’ administration or disposal of the trust property be delivered to him/her. Trustees may also be called upon to answer questions put to them by the Master concerning the administration and disposal of trust property.

The Master may, if he/she deems it necessary, cause an investigation to be carried out by some fit and proper person appointed by the Master, into the trustees’ administration and disposal of trust property, and may make an order concerning the costs of the investigation.

These records and documents should be kept safe until the expiry of a period of five years from the termination of a trust in terms of Section 17, and may not be destroyed without the Master’s written consent.

What if a trustee does not comply with his/her duties?

If any trustee fails to comply with a request for records by the Master or to perform any duty imposed by the trust instrument or by law, the Master or any person having an interest in the trust property may apply to court for an order directing the trustee to comply with such request or to perform such duty in terms of Section 19.

Copies of Documents

Section 18 specifically provides for the furnishing of copies of the documents under the Master’s control to a trustee, his/her surety or his/her representative or any other person who in the opinion of the Master has sufficient interest in such document, upon written request and payment of the prescribed fee.

Public access to trust information:

Previously some Master’s offices were reluctant to give the public access to information about trusts. In March 2009 the RSA Acting Chief Master brought some clarity and uniformity with a directive regarding access to information.

The procedure to obtain information on a Trust (such as names of Trustees etc.), can now be summarized as follows:

  • Written application should be made to the Office where the Trust is registered, providing reasons why this information is needed.
  • If the request is by a trustee, his/her surety or representative, they will have automatic access to any information/documents in the file.
  • The Master must exercise his/her discretion on the application of any other person, and weigh up the interest of the parties involved in deciding whether or not the information should be provided.  After the Master has requested the input of the Trustees and beneficiaries, he/she will exercise a discretion whether to provide the applicant with the information or not.
  • Should a request for information be denied by the Master’s Office, the applicant will need to apply to the Information’s Officer of the Department of Justice.

It would seem, therefore, that as long as the applicant can provide reasons and show “a sufficient interest” in respect of the trust, the Master should supply him/her with the information.

Beneficiaries’ rights to information:

In the case of Doyle v Board of Executors 1999 2 SA 805 (CPD) the court found that a beneficiary is entitled to request and receive “full, true and proper accounting, duly supported by vouchers” concerning the affairs of the Trust.

Should you require any assistance in obtaining information about a trust in which you have an interest, or need advice on your rights and duties as trustee or beneficiary, please contact our Trust and Estate Department for further assistance.

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)

Transfer of a property: Is VAT or transfer duty payable?

A purchaser is responsible for payment of transfer cost when acquiring an immovable property, but it should further be established if the transaction is subject to the payment of VAT or transfer duty to SARS.

When an immovable property is transferred, either VAT or transfer duty is payable. To determine whether VAT or transfer duty is payable one should look at the status of the seller and the type of transaction.

VAT

If the seller is registered for VAT (Vendor) and he sells the property in the course of his business, VAT will be payable to SARS. A vendor is a person who runs a business and whose total taxable earnings per year exceed R1 000 000. He will then have to be registered for VAT. A further stipulation is that the property that is being sold must be related to his business from which he derives an income.

The Offer to Purchase should stipulate whether the purchase price includes or excludes VAT. If the Offer to Purchase makes no mention of the payment of VAT and the seller is a VAT vendor, it is then deemed that VAT is included and the seller will have to pay 14% of the purchase price to SARS. It is the seller’s responsibility to pay the VAT to SARS, except if the contract stipulates otherwise.

When a seller is not registered for VAT, but the purchaser is a registered VAT vendor, the purchaser will still pay transfer duty but can claim the transfer duty back from SARS after registration of the property.

Transfer duty

When the seller is not a registered VAT vendor it is almost certain that transfer duty will be payable on the transaction. A purchaser is responsible for payment of the transfer duty. Transfer duty is currently payable on the following scale:

  1. The first R750 000 of the value of the property is exempted from transfer duty.
  2. Thereafter transfer duty is levied at 3% of the value of the property between R750 000 and R1 250 000.
  3. Where the value of the property is from R1 250 001 up to R1 750 000, transfer duty will be R15 000 plus 6% on the value of the property above R1 250 000.
  4. If the value of the property falls between R1 750 001 and R2 250 000, transfer duty will be R45 000 plus 8% of the value of the property above R1750 000.
  5. On a property with a value of R2 250 001 and above transfer duty is R85 000 plus 11% on the value of the property above R2 250 000.

Transfer duty payable by an individual or a legal entity (trust, company or close corporation) is currently charged at the same rate.

Transfer duty is levied on the reasonable value of the property, which will normally be the purchase price, but should the market value be higher than the purchase price, transfer duty will be payable on the highest amount. Transfer duty is payable within six months from the date that the Offer to Purchase was signed.

In instances where a party obtains a property as an inheritance or as the beneficiary of a divorce settlement, the transaction will be exempted from payment of transfer duty.

Where shares in a company or a member’s interest in a close corporation or rights in a trust are transferred, the transaction will be subject to payment of transfer duty if the legal entity is the owner of a residential property.

Zero-rated transactions

This means that VAT will be payable on the transaction but at a zero rate. If both the seller and the purchaser are registered for VAT and the property is sold as a going concern, VAT will be charged at a zero rate, for instance when a farmer sells his farm as well as the cattle and the implements.

Exemption

Transfer duty, and not VAT, will be payable when a seller who is registered for VAT sells a property that was leased for residential purposes.

It is thus important for a purchaser to establish the status of the seller when buying a property. The seller who is registered for VAT should carefully peruse the purchase price clause in a contract before signing, to establish if VAT is included or excluded.

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)

What to do after a car accident?

If a driver of a vehicle, at the time when the vehicle is involved in or contributes to any accident in which any person is killed or injured or suffers damage in respect of any property, including a vehicle, or animal, must report the accident to a police or traffic officer at the scene of the accident as soon as possible, unless he or she is incapable of doing so by reason of injuries sustained by him or her in the accident. In the case where a person is killed or injured, it must be within 24 hours after the occurrence of the accident, or in any other case on the first working day after the accident.

What must a person do after a motor vehicle accident (“accident”)?

  1. Call the police or report the accident at the nearest police station within 24 hours if a person is killed or injured; or on the first working day after the accident if no person was killed or injured.
  2. Write down the name of the police officer spoken to and the accident report’s reference number.
  3. Co-operate with all emergency personnel and police who respond to the accident.
  4. Get the details of all other motor vehicles involved in the accident, such as the drivers; names, identity numbers, addresses, telephone numbers, description of the motor vehicles, the registration numbers, and any relevant details from the licence discs; the date, time and address of the accident; the weather and road conditions when the accident occurred; and any other information that may be relevant.
  5. If an employee is driving a motor vehicle on behalf of his/her employer, then the details of the driver and the employer must be taken.
  6. Write down the names, addresses, and phone numbers of all potential witnesses of the accident.
  7. Take photographs or a video of the following: the scene of the accident, from all angles; the surrounding area; the injuries; and any damage to property.
  8. Draw a sketch plan of the scene of the accident and make sure that it contains a fixed point so that it can easily be traced. Also make a statement about how the accident happened. This sketch and statement will remind a person of all the details relating to the accident at a later stage.
  9. If a person has been injured, a doctor must be consulted immediately, even if the injury is not serious.
  10. If the person is insured, that person has to notify his/her insurance or broker as soon as possible. Write down the name of the person spoken to at the insurance and the reference number of the claim.

What must a person NOT do after an accident?

  1. Move his/her motor vehicle; unless it is necessary for safety or required by law.
  2. Subject himself/herself to further injury by standing or waiting in an area near traffic or other safety hazards.
  3. Leave the scene of an accident until the police tell him/her to do so.
  4. Throw away any potential evidence, such as defective products, important documents, or torn or blood-stained clothing.
  5. Engage in discussions of fault with anyone as that can be considered evidence in court – do not admit liability.
  6. Agree to settlement terms without discussing the matter with an attorney.

Although involvement in a motor accident is always a traumatic experience, try to remember that nearly all accidents have legal consequences. For instance, a criminal charge of driving without a licence, drunken driving or culpable homicide may follow. Civil consequences may include claims for damage to property, or for personal injury, and may arise whether there is a criminal charge or not.

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)

Reference:

Source 1

Source 2

What are tenant and landlord duties?

When it comes to letting a property – both the tenant and the landlord should always enter into any letting agreements openly and honestly and intending for each party to get proper value. Often it’s the approach which the parties adopt which will determine whether the relationship between the parties and the benefits they derive therefrom is mutually satisfactory. Furthermore, there are important duties that each party is expected to do.

Non-Statutory Law (Common Law)

The tenant is obliged to:

  • Pay the proper amount of rent in the proper commodity at the proper place and time.
  • Take good care of the property and not use it for other purposes than for which it was let.
  • Restore it to the same condition that he received it at termination of the lease.
  • Common law states simply that the full rent must be paid at the proper time – the time and date agreed by both the tenant and the landlord. It does not provide the tenant with a 7-day grace period.

Statuary Law (The Rental Housing Act)

The tenant is obliged to:

  • Make prompt and regular payment of rent and other charges payable in terms of the lease.
  • Make payment of a deposit – the amount of which should be agreed upfront between the landlord and tenant.
  • Have a joint incoming and outgoing inspection with the landlord.

The property owner

The prime duty of a property owner is to give a tenant occupation and control of the property. Furthermore, the owner has to maintain the property in its proper condition, subject to fair wear and tear (defined as the ‘unavoidable consequence of the passage of time’). The owner must also ensure that normal running repairs to the property are carried out.

A second important duty of the owner is a guarantee that the tenant will enjoy the undisturbed use and enjoyment of the property for the duration of the lease. This duty has three facets:

  • The property owner must not unlawfully interfere with the tenant’s rights although he or she is entitled, in certain circumstances, to interfere lawfully if, for instance, the tenant has to vacate the premises temporarily to allow necessary repairs to be done. Although an owner also has a right of inspection, this right must be exercised in a reasonable manner.
  • The owner must protect the tenant against being disturbed by ‘third parties’ who may claim a stronger right to the property than the tenant. For example, if you sub-let property from a lessee whose lease is invalid (perhaps because it has not been drawn up properly), you could be evicted by the original owner of the property. If this happens, the person who sub-let the property to you is obliged to protect you from being evicted.

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)

Reference:

Source 1

Source 2

Source 3

Pay your levies, or else…

Dear Mr Lawyer

I am the owner of a sectional title, and I have paid my levies every month as required, until the water started seeping through the ceiling of my enclosed balcony into my section when it rains. The leak was clearly emanating from a defect in the common property. I asked the body corporate on numerous occasions to repair the defect, yet after four months of writing letters and sending emails the body corporate still has not done anything to honour this simple request. As a frustrated owner I resorted to desperate measures and employed a contractor to repair the property defect. I settled the bill myself.

May I withhold my levies for a period to set off the money that is owed to me by the body corporate?

Dear Mr Owner

Although this action may sound reasonable, the right to stop paying or to set off a debt against levies is not legally justified and owners are not, under any circumstances, entitled to simply withhold levies.

There is no provision in the Sectional Titles Act 95 of 1986 or the rules that gives an owner the right to withhold levy payments. Even if an owner incurs expense in performing an emergency repair to the common property, and believes that the body corporate owes him money, the owner may only set off the debt against the levies once it becomes liquid.

An amount can only be liquid once it has been agreed upon. An owner cannot set off the amount he believes he is entitled to deduct. The trustees, judge or arbitrator must have confirmed the amount.

If Mr Owner does withhold his levies without the amount being liquid, he is subject to the following sanctions in terms of the prescribed rules:

  • Firstly, the trustees are entitled to charge interest on arrear amounts at a rate determined by them, and so the defaulting owner may receive a larger account, due to the interest on his arrears, than if he had paid his levies.
  • What is more, The Sectional Titles Act imposes a positive obligation on trustees to recover levies from defaulting owners. Not only does the Act empower them to charge interest, the scheme attorneys will most likely issue summons against the defaulter for all costs that the Body Corporate may incur in recovering any arrears.
  • Secondly, the prescribed management rules provide that, except in the case of special and unanimous resolutions, an owner is not entitled to vote if any contributions payable by him in respect of his section have not been duly paid. Therefore, an owner who withholds his levies is unable to vote for ordinary resolutions in respect of the section that he is withholding levies on.

Mr Lawyer, how does an owner deal with a situation where he believes the body corporate is liable for payment?

A dispute must be declared with the Body Corporate by written notice of the dispute or query to the trustees. The trustees or Body Corporate then have 14 days from receipt to resolve the dispute. During this period, the parties should meet to try and resolve the dispute. If there is no resolution after the 14-day period, either party may demand that the dispute be referred to arbitration. The arbitrator must make his/her recommendations in settlement of the dispute within 7 days from the date of commencement of the dispute. The decision of the arbitrator shall be final and binding and may be made an order of the High Court.

It is clear that prescribed processes are in place according to which disputes and related issues can be settled. Not only will this ensure that you act within the legal guidelines, but it will also eliminate unnecessary frustration.

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)