Do I need a cohabitation contract with my partner?

Cohabitation is a relationship between two people who choose to live together in a monogamous and stable environment. Couples who decide on cohabitation could do so, prior to getting married, as an alternative to marriage, or while they are still in the process of divorce and are already living with their new partner.

The differences between marriage and cohabitation are as follows:

  1. No legal protection if/when the partnership ends.
  2. Claiming maintenance after a separation could be more difficult/impossible.
  3. No court is required to end the relationship.
  4. Partners won’t necessarily inherit from each other.
  5. Cohabitants cannot insure each other’s property.

What happens if there is no written cohabitation agreement?

  • If there is no agreement on the dissolution of a relationship, a person is only entitled to retain the property which s/he has purchased and owns.
  • The couple would be entitled to share in the property proportionately in terms of the contribution which they have made to the relationship. Each person will need to prove what property they have acquired together in order to get back what they are entitled to.
  • If a dispute arises, a court may be approached for assistance.

How are couples protected in cohabitation?

  • In order to protect the couple in cohabitation, rights and obligations of the couple can be protected by way of entering into a cohabitation agreement. The agreement regulates the relationship during its existence and after it has come to an end.
  • A cohabitation agreement can be entered into verbally or in writing. It is recommended that such an agreement be concluded in writing and signed.
  • The agreement can be concluded at any time during the relationship.

A cohabitation contract

If two partners have decided to live together it would be beneficial to have a contract drawn up. These are some elements the contract could contain:

  1. Household expenses: Who is responsible for paying what and from whose account?
  2. Joint property: If you want joint assets rather than separate assets.
  3. Joint home: If you want a home to be registered in both names of the partners, however, the partners don’t have to have equal shares in the property.
  4. End of relationship: Deciding what will happen with each other’s assets after the relationship ends and whether or not one partner will be able to receive maintenance from the other.
  5. Children: If there’s a child, the parental rights and responsibilities should be set out, but this has to be done with legal advice first and should be registered.

Conclusion

Cohabitation can be successful in and of itself, but without a contract there are no ‘safety nets’. This could prove a mistake in relationships where property or a child is involved.

Reference:

  • Anderson, AM. Dodd, A. Roos, MC. 2012. “Everyone’s Guide to South African Law. Third Edition”. Zebra Press.

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 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:

  1. Pay the proper amount of rent in the proper commodity at the proper place and time.
  2. Take good care of the property and not use it for other purposes than for which it was let.
  3. Restore it to the same condition that he received it at termination of the lease.
  4. 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:

  1. Make prompt and regular payment of rent and other charges payable in terms of the lease.
  2. Make payment of a deposit – the amount of which should be agreed upfront between the landlord and tenant.
  3. 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:

  1. 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.
  2. 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.

Reference:

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).

Does it feel like you are drowning in property debt? In need of rescue?


EasySell by Standard Bank could be the lifeline you are looking for.

Are you a home owner with an existing bond, but in financial distress and unable to make your bond repayments? Avoid the risk of having your property repossessed, ending up with a bad credit record and facing long and costly legal procedures.

How? Consider selling your home.

At Joubert Scholtz Inc. we understand how difficult financial distress can be. EasySell, a product offered by Standard Bank, might be the lifeline you need to protect your financial well-being.

What is EasySell?

EasySell is a private sale option offer by Standard Bank, that is designed to help you sell your property and settle your home loan debt in the most stress-free way possible.

How does EasySell work?

By partnering with approved estate agents and legal experts in your area, who specialise in marketing your property in the media and via MyRoof.co.za, and assist with all the legal procedures, Standard Bank ensures that you get the best possible price for your home. This selling price is used to settle all the relevant costs, fees, levies and your outstanding bond. Any shortfall can then be paid off through an interest free loan.

How do you benefit?

  • Standard Bank helps you manage the entire selling process.
  • With the right financial, property and legal support, you get to sell your home sooner.
  • Finance the shortfall with a 5-10 years interest free loan (depending on the shortfall amount)
  • Get up to 10% discount* on the outstanding balance of your home loan account.
  • No upfront payments (even include arears rates and taxes, levies and the electrical compliance certificate as part of your shortfall)  (*Discount only applicable if there is a shortfall)

EasySell Structuring Example:

Outstanding balance: R500 000
Less up to 10% discount* on outstanding balance: (R50 000)
Total Outstanding R450 000
Less selling price (nett after agent’s commission) (R350 000)
Shortfall R100 000
Overdue levies, rates and taxes R20 000
Electrical compliance certificate R5 000
Total shortfall R125 000

(*Discount only applicable if there is a shortfall)

Further benefits for you from EasySell:

Standard Bank’s dedicated EasySell team will use their knowledge of property marketing to help you get your property sold sooner rather than later. What’s more:

  • You stay in control of the sale of your property at all times. You can agree a minimum reserve price (the amount you want for your property) upfront. If this price is not met, the property will not be sold without your consent.
  • You save money, as Standard Bank negotiates the lowest, most competitive rate of commission payable to the estate agent.
  • Standard Bank will manage the entire process for you until the property is registered in the name of the buyer and you have received the proceeds of the sale.
  • Standard Bank also make it attractive to buyers by offering them up to 100% loans on all EasySell properties through Standard Bank and they can also get a 50% discount on their transfer and bond registration fees. (provided the same attorney is used for both transactions) 

Don’t wait until it’s too late – talk to Joubert Scholtz Inc. about EasySell today!

Although it’s a tough decision, if selling your home can make a real difference to your financial health it has to be an option worth considering. And if you are already in debt, it makes sense to take action as soon as possible to rescue the situation before it gets any worse.

Click here to download the Standard Bank EasySell Brochure.

Contact Us so we can help set the process in motion – and set your mind at ease.

Joubert Scholtz Attorneys – Jaco Joubert

Call us – 011 966 7600

Email us – jaco@joubertscholtz.co.za

Information supplied by Standard Bank

Terms and conditions apply.

Standard Bank is an Authorised financial services and registered credit provider (NCRCP15)

The Standard Bank of South Africa Limited (Reg. No. 1962/000738/06). SBSA 251711-10/16

Properly executing a will is extremely important

I gave instructions to my attorney to prepare a last will and testament for me as my will no longer reflected my wishes. At my request, my attorney emailed the will to me with clear instructions as to how I should go about signing it. I asked my neighbours to act and sign as witnesses. My neighbours signed the will on all the pages and left before I signed. I then signed the will on all the pages. I am now worried about the validity of my will as the email from my attorney states that I have to sign the will in the presence of two witnesses. Is my will valid?

The formalities for the valid execution of a will are set out in the Wills Act. Section 2 of the Wills Act, Act 7 of 1953, reads: “No will executed… shall be valid unless the will is signed at the end thereof by the testator… and such signature is made by the testator… in the presence of two or more competent witnesses present at the same time and such witnesses attest and sign the will in the presence of the testator and of each other…”. Therefore, in order for a will to be valid, it has to be signed in the presence of two independent witnesses, both witnesses being present when the will is signed by the testator. The two witnesses signed your will in the presence of each other, but not in your presence.

A similar set of facts presented itself in a court case recently heard by the Gauteng Local Division of the High Court. In this matter, the two daughters of the deceased, who lost out on their inheritance in terms of the will of their father, claimed that it was never their father’s intention for his much younger lover to inherit his total estate. The testator was 85 years old at the time of his death and he had been living with a woman 38 years his junior for 8 years.

The deceased executed two wills during his lifetime. One on 6 November 2011 (“the 2011 will”) and another on 7 January 2014 (“the 2014 will”). The 2014 will was signed shortly before his death leaving the bulk of his estate to his much younger lover. The daughters of the deceased claimed the 2014 will was invalid as there were “suspicious” circumstances. They claimed their father either did not sign the 2014 will himself or, if he did, that he lacked the mental capacity to execute a valid will by reason of dementia. The daughters of the deceased were not successful in proving that the deceased’s signature was a forgery despite the fact that three handwriting experts testified.

Another witness called to testify was a witness to the 2014 will. Her testimony focused on the circumstances surrounding the signing of the 2014 will. She signed the will as a witness. She testified that she and her husband met the deceased in the street. As they were acquainted they naturally engaged in social conversation. She and her husband were informed that the deceased was on his way to the police station to sign a will. She and her husband were asked if they would accompany the deceased in order to sign the will as witnesses. They were assured that the process would not take long so they agreed to assist.

She and her husband signed the will and immediately left. They were the first to sign the will. At the time they signed the will the deceased had not signed the will. They left before witnessing the deceased signing the will. Hence, the 2014 will was not signed by the deceased in their presence even though it reflects their respective signatures as witnesses.

The evidence assessed collectively established that the deceased signed the 2011 will and also that he signed the 2014 will. However, the 2014 will was signed by the deceased after the two witnesses to the will had already left and therefore was signed in their absence.

The court referred to Section 2 of the Wills Act in terms whereof no will is valid unless the signature made by the testator is made “in the presence of two or more competent witnesses present at the same time”. The court confirmed that this requirement is mandatory and, if not met, the will is not valid for want of compliance with a statutorily required formality.

The court therefore found the 2014 will to be invalid and, as there was no evidence that there was any irregularity in the execution of the 2011 will, the 2011 will was declared the will of the deceased.

This judgement of the High Court once again emphasizes the importance of complying with the Wills Act. Your will is invalid, and it is advisable for you to print the will again and to sign it in the presence of two competent witnesses or, even better, for you to make an appointment with your attorney in order to sign the will at his office.

Reference List:

  • Twine and Another v Naidoo and Another [2017] ZAGPJHC 288; [2018] 1 All SA 297 (GJ)
  • Wills Act, Act 7 of 1953

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).

Does South Africa have a public retirement insurance scheme?

My husband’s employer made provision for an occupational retirement vehicle, but my employer refuses to do so. Is there any possible recourse for me in this situation?

There is currently no public retirement insurance scheme in South Africa. This is quite a predicament for most South Africans, as the majority of persons employed in the informal economy would have to rely on an old age grant (which is currently R1, 690.00 and will increase with R10.00 on the 1st of October 2018) rather than occupational retirement. This leaves one with the alternative options of either a private retirement fund or a provident fund.

Some employees are lucky enough to be given the choice between a pension or a provident fund, when they are employed. However, there is no statutory obligation on an employer to provide such a choice to their employee. In the case of a provident fund, the contributions of members are not allowed as tax deductions and, when the member reaches the retirement age, the whole benefit will be paid out in a lump sum. In contrast, with a pension fund, the member gets one third of the total benefit in a cash lump sum and the other two-thirds is paid out in the form of a pension over the rest of the member’s life. The contributions to a pension fund are deductible for tax, which offers the member some tax benefits.

Independent contractors, the self-employed, and other persons who do not qualify to join occupational retirement funds, are left with no other option but to turn to private retirement annuities. The high-income employees also tend to invest their monies in this option to secure a comfortable retirement.

The private retirement scheme option has now taken up the responsibility of a social insurance scheme.

In his budget speech on the 21st of February 2018, the Finance Minister, Malusi Gigaba, declared that the old age grant would increase by the 1st of October 2018. This is the last option for those whose retirement plans have failed, or the only option for most informal economy employees or low-income employees.

With the lack of a public retirement insurance scheme, employees who are not fortunate enough to be given the option of an occupational retirement vehicle are left with no other alternative but to turn to a private insurance scheme. This decision is however also dependant on a “practicable” salary. There is currently no statutory obligation on employers to provide for an occupational retirement scheme.

Sources:

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).

The difficulties in relocating a child of divorced parents

I have divorced my husband and I am now the primary caregiver of our minor child. I received a job offer in another country and I would really like to accept it. My ex-husband and father of my minor child won’t consent to the relocation of our minor child. Will I get permission from the court to relocate?

In the case of relocation disputes where the primary caregiver wants to relocate, there are certain factors the court considers before granting the relocation. These factors are listed in Section 7 of the Children’s Act.

As one can imagine, family law and divorces are difficult topics; especially when minor children are involved. In the event the parties separate, the minor children will need to be in the primary care of one parent and the other parent will have rights and responsibilities in respect of the minor child but does not necessarily have to live with the child.

The issue that arises in situations as outlined above is where the primary care-giver wants to relocate to another country and the other parent won’t give consent (hereafter “the disputing party”). The difficult part of disputes relating to relocation is that there are numerous competing rights. The Children’s Act (“the Act”) regulates and makes provision for those rights.

In order to have a full understanding of the issues that arise here, a breakdown of the various rights should be discussed. Firstly, the right to freedom of movement and association of the primary caregiver may become a problem. Secondly, the rights of the opposing parent to be in contact with the minor child. Lastly, the rights of the minor child are restricted, i.e. the right of the child to maintain personal relations and direct contact with his parents. The infringement of these rights can, by their very nature, turn into a dispute.

Where the dispute cannot be resolved between the parties through negotiation, the parties would rather opt for mediation than litigation. The reason for choosing the former is because of the nature of the dispute – it is a family matter and there are minor children involved. Litigation is a more strenuous route of dispute resolution, thus not the most suitable given the circumstances.

Where the court is tasked with making a ruling in a relocation dispute, there are certain factors the court considers. Section 7 of the Act sets out a list of these factors.

If the parties are divorced, the court will consider whether there is a court order in existence prohibiting the removal of the child from the court’s jurisdiction. In some case, the parties agree in their settlement agreement to never remove the minor children from the Republic of South Africa.

In the event the court has to consider the right to contact with the minor child, the court looks at the meaning of the word “contact” as used in the Children’s Act. It is important to keep in mind that “contact” does not only mean the physical seeing of each other in flesh, but also communications via laptop and/or cell phone. This form of contact is easier to make use of in our era.

The court will consider the reason for the relocation as a factor in these matters. The reason for this consideration is because the best interest of the child is of utmost importance. If the reason for relocation is, for example, to contribute to the child’s education or safety (something that would be considered positive), the court is likely to be more pleased.

The court will also consider the relationship the child has with the parents. If the opposing parent has a great relationship with the minor child and sees the child every alternate weekend or holiday and will now only be able to email the child- the court will have to consider this and the possible influence the absence of the opposing party would have on the minor child, if relocation is granted.

This will also become clearer when the court considers the choice of the minor to relocate or not.

The court also considers the stability factor. This includes the court considering the life outside the home of the minor. It is important to know whether the child is happy where he/she is, how well the child does at school, whether he/she has family members living nearby and whether he/she visits on a regular basis.

As with the conflicting rights of the parties, the court kept the best interest of the child in mind, whilst considering the above mentioned factors. The court in the AC v KC case also applied the “reasonable person’s test” and the court held that “one must think oneself into the shoes of the proverbial bonus paterfamilias or the reasonable man”. Even though the reasonable person test was used in AC v KC, the best interest of the child is the most important factor.

Reference list:

  • Children’s Act 38 of 2005
  • A.C. v K.C. (A 389/08) [2008] ZAGPHC 369
  • Jackson v Jackson (18/2001) [2001] ZASCA 139

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).

Am I still protected without an employment contract

This article looks at the continued relevancy of the employment contract in legal practice today. In 2014, the legislator amended section 186(1)(a) of the Labour Relations Act, 66 of 1995 (LRA), which deals with unfair dismissals, by removing the words “contract of” within the definition, leaving only the word “employment”. This gives the idea that the legislator accepts that the employment relationship goes beyond just the employment contract.

On being offered employment, not everyone tends to ask for an employment contract first, yet the employment contract is the first thing everyone turns to when the employment relationship turns sour. It was accepted that the contract of employment is the cornerstone of the employment relationship. It links the employer and the employee in an employment relationship.

The initial idea was that the contract of employment regulates all aspects of the employment relationship. However, in practice this is not the reality. The employment relationship tends to go beyond just the contract of employment. This is because of statutory intervention, collective contracts, customs, and practices as well as common law implied terms which are often read into the contract. In terms of the section 186(1)(a) of the LRA, the old definition of dismissal was defined as the termination of the employment contract with or without notice. To accommodate the abovementioned factors, the legislator amended the section, expanding the definition of a dismissal to entail more than just the termination of the contract of employment.

This begs the question: do you need to sign an employment contract to be protected by labour legislation in South Africa?

The Labour Relations Amendment Act, 6 of 2014 (LRAA) changed the definition of dismissal in terms of section 186(1)(a) of the LRA. This means that the test for a dismissal will now hinge on whether employment or the employment relationship is terminated. This change from the contract of employment to just employment and/or employment relationship is also noticeable in section 186(1)(e) and (f).

So, what is meant by employment relationship? The contract of employment contains most of the terms and expected duties of both the employer and employee but it seldom happens that it covers the full spectrum of the employment relationship. Some obligations and rights are derived from a variety of sources, including the common law, collective bargaining, statutes, custom and practices, and in some instances, oral contracts between the employer and the employee. Other factors which may be taken into account, such as the employee’s obedience, care, economic dependency between the parties, fidelity, and the employer’s duty of care towards the employee, are not often referred to in the contract of employment. Initially, when employees entered into the contract, these rights and obligations may not have seemed as important but may have later turned out to be the core of a dispute. Therefore, there was a need for the concept to go beyond that of just the contract of employment, as it needed to cover the full scope of the practical realities of the workplace.

The world of work has changed over the years and employers always try to bypass labour legislation, which means that working arrangements may go beyond the employment contract and the protection provided for in labour legislation should also adapt. In Denel (Pty) Ltd v Gerber 2005 9 BLLR 849 (LAC) the court held: “In this regard it is important to bear in mind that a contract between any two persons may represent form and not substance or may not reflect the realities of a relationship…”

In State Information Technology Agency (SITA) (Pty) Ltd v CCMA & others 2008 7 BLLR 611 (LAC) the Labour Appeal Court also used the “reality test” to determine an employment relationship. In WL Ochse Webb & Pretorius (Pty) Ltd v Vermeulen 1997 18 ILJ (SA) 361 (LAC) the court highlighted that neither the employer nor employee benefit from the employment contract when it is “cast in stone”.

The legislator has now shifted the focus to the abstract relationship between the employer and employee, rather than just focusing on the contract between them. This amendment changes the entire idea we had about the employment relationship, even expanding the protection offered by labour legislation.

Reference List:

  • AC Basson, MA Christinason, A Dekker, C Garbers, PAK Le Roux, C Mischke & EML Strydom Essential Labour  Law 5 ed (2009).
  • A van Niekerk, MA Christianson, M McGregor & BPS Van Eck Law@Work 3 ed (2015).
  • A Rycroft & B Jordaan A Guide to South African Labour Law 2 ed (1992).
  • JAM Coyle-Shapiro, LM Shore, MS Taylor & LE Tetrick The Employment Relationship: Examining Psychlogical and Contextual Perspectives (2004).
  • Denel (Pty) Ltd v Gerber 2005 9 BLLR 849 (LAC).
  • State Information Technology Agency (SITA) (Pty) Ltd v CCMA & others 2008 7 BLLR 611 (LAC).
  • WL Ochse Webb & Pretorius (Pty) Ltd v Vermeulen 1997 18 ILJ (SA) 361 (LAC).

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).

Before leasing, include these in the agreement

If you consider leasing out your property, it is important not to overlook any requirement and expectations you may have of the incoming tenant. A basic lease agreement should at least have the below stipulated in detail:

  1. Basic information

This includes the details of those who are party to the agreement, the address of the property being leased out, and the lease period.

  1. A deposit and other fees

The purpose of a deposit is to ensure that, should there be any damages to a property due to the tenant’s fault, they could be repaired without the landlord incurring the expenses or waiting for the tenant to pay for said damages. The deposit amount must be stated in the agreement and is payable to the tenant, after damages have been deducted, when the lease agreement has been terminated.

  1. Responsibilities, repairs and maintenance of the premises

Landlords are not able to oversee everything the tenant does, and this is where the responsibility and maintenance clause comes in. If the property’s utilities will be included in the rent, it should be stipulated and not assumed. The general upkeep, such as mowing the lawn or cleaning the pool, must be stated as to whom will be responsible for it. Saying it orally will not suffice because if it is not in writing, it’s easy to challenge it.

  1. Subletting and limits on occupancy

All the adults who will be living on the premises should be party to the agreement; their names, details and signatures must be provided. This allows for the landlord to determine who may live on the property and serves as proof that these are the occupants that he/she has approved.

  1. Rent payment

If this is not on the lease, then living on the property is obviously free. Unless this is intended, the rent payable must be included in the agreement. In addition, details regarding the amount, date to be paid, acceptable payment methods, and repercussions of failing to meet these requirements, must be included.

  1. Termination of lease

The terms that warrant a lease to be terminated must be included in the agreement.

  1. Pets

A landlord cannot just assume that a tenant will not have pets. If pets are allowed, descriptive limitations and restrictions must be included as well.

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).

There is a way to keep the view

When you purchase a house with a view, you probably think that you are going to enjoy this view every day for the rest of your life. Until you receive a flyer with a picturesque multi-story building guaranteed to block your view. This will definitely result in a few disputes that will leave you wishing you had secured your view.

Right to the view

Just because the property has an unrestricted view, it does not mean that the view is the owner’s. To secure it, a registration of a servitude against the title deeds of the properties in the Deeds Office. This includes the natural growth of trees or plants that will block the view over time.

The registered servitude

The registration of the servitude must be made clear where the intentions of the servitude are established and made clear. This is so that when an issue regarding property views reaches the court, the court would need not be concerned about ambiguity and surrounding circumstances.

Court’s considerations

Before reaching a decision, the court may be mindful of considerations when the servitude is interpreted. The result will try, as far as possible, to alleviate burdens on the servient property owner. Emphasis is placed on views and the purpose of the servitude as to provide unobstructed views as they existed at the time of the creation of the servitude.

A new property owner may have to consider the type of building they are wishing to erect so it does not impose on any restrictions in terms of an agreement made by the “owner” of the view.

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).

Court interference in a contractual relationship

When two or more parties enter into a contractual agreement knowingly and free from duress, the terms of the agreement must be upheld by each signatory. However, it must be noted when the contract is entered into under pacta sunt servanda, which means “agreements must be kept”, principles of fairness, good faith and reasonableness don’t play a part when circumstances leading to contract breach arise.

With regards to property law, for example, if a lease agreement states a date on which rental is due, then the party responsible for making this payment should meet this obligation. Failing to do so could enable the lessor to cancel the signed lease without notice and retake the property. Genuinely, because the lessee had agreed to the clause by signing the contract, that would then mean that they agree on the grounds of cancellation.

But if the late payment was due to circumstances beyond the lessee’s control, does the cancellation clause still stand?

If the lessee does not oblige with the lease cancellation, the lessor may approach a court to deliver judgement on the agreement and serve a notice of eviction. The lessee may argue that they acted in good faith and that the matter was beyond their control. The lessee may also argue that the implementation of the pacta sunt servanda principle varies from case to case and should be determined by the circumstances surrounding breach of the lease.

If the court chooses to hand down judgement based on the lessee’s argument, it is incorrect due to the freedom each party had when entering into a contractual agreement. Each party has bargaining power and should have, before signing, ensured that any possible errors were taken into account. Good faith and fairness don’t play a part when it comes to an agreement and a court cannot base that as the reason why the lessor should not have cancelled 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).