Month: November 2016

IS MY TENANT RESPONSIBLE FOR THE WORN OUT CARPET?

my-lawyer_images_nov-05There are several damages a landlord can deduct from a tenant’s deposit. However, there are certain household items that will experience normal wear and tear over time. This is referred to as “fair wear and tear”.

Fair wear and tear is seen as damage or loss to an item at the property which happens as a result of ordinary use and exposure over time.

According to the Rental Housing Act, a landlord is free to claim compensation for damage to the property caused by the tenant, except for fair wear and tear.

It’s important to remember that the original condition and age of the item at commencement of the lease agreement needs to be taken into account, and therefore cost of depreciation of the item due to normal wear. Paint fades, doors and walls get scuffed with use, and everything wears or breaks over time, even with a tenant who really cares for the property, and one can’t hold a tenant liable for this.

If a tenant or landlord has a problem, they can go to the Rental Housing Tribunal to resolve it.

The Rental Housing Tribunal

The Rental Housing Tribunal is a useful resource for both landlords and tenants who are dealing with rental property disputes in different forms. Cases that the Rental Housing Tribunal deals with include:

  1. Tenants defaulting on their rent
  2. Failure to repay a deposit
  3. Invasion of a tenant’s privacy
  4. Overcrowding of a rental property
  5. Determining a fair rental amount
  6. Illegal seizing of a tenant’s property
  7. Discrimination against a prospective tenant
  8. A receipt for rent not being issued
  9. Unacceptable behaviour by a tenant
  10. Lack of maintenance and repairs to the property
  11. Illegally refuse a tenant access to the property or interrupt services
  12. Unacceptable living conditions

A general rule of thumb is that, if a tenant has damaged something that does not normally wear out, or the tenant has substantially shortened the life of something that does wear out, the tenant may be charged the prorated cost of the item. The landlord should take into account how old the item was and how long it may have lasted otherwise, as well as the cost of replacement.

Conclusion

Ordinary wear and tear to carpets should not count against the tenant, however large rips or stains would be considered damage. Any deduction for the tenant’s deposit should take into account the age of the carpets, compared with the expected total time of usage.

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:

http://www.lettingworx.co.za/blog/item/fair-wear-and-tear-on-rented-property.html

http://www.privateproperty.co.za/advice/property/articles/what-is-classified-as-fair-wear-and-tear/5010

WHAT TO DO AFTER A CAR ACCIDENT?

my-lawyer_images_nov-04If 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:

https://www.legalwise.co.za/help-yourself/quicklaw-guides/car-accidents/

http://www.saps.gov.za/faqdetail.php?fid=10

IMPORTANT STEPS FOR THE TRANSFER OF PROPERTY

my-lawyer_images_nov-03The transfer process can take up to three-months, sometimes longer. There are different steps involved in the transfer of a property, these include:

 

  1. Instruction.

A conveyancer receives the instruction to transfer the property.

  1. Communication.

The conveyancer communicates with the various role-players involved in the transfer process, such as the seller, purchaser, transfer and bond attorneys, municipality, bank, South African Revenue Service (SARS).

  1. Collection.

Certain information and documents are required, such as the agreement of sale, deeds office search, existing deed, bond cancellation figures from the bank and so on. The conveyancer should continuously report to the various role-players about the progress being made.

  1. Drafting and signing.

As soon as all the information and documents have been collected, the conveyancer will draft the transfer documents and request the seller and purchaser to sign them. These transfer documents will include a power of attorney and various affidavits.

  1. Finances.

Financial arrangements include requesting an advance payment for the conveyancer’s interim account for certain expenses, requesting the bank guarantee, collecting the purchase price or deposit and so on.

  1. Transfer duty.

Obtaining a transfer duty receipt from SARS, confirming that the tax relating to the transfer of the property has been paid by the purchaser.

  1. Clearance certificate.

Obtaining a clearance certificate from the municipality, confirming that all amounts in respect of property have been paid for the last two years.

  1. Prep.

The conveyancer prepares for lodgement (submission) of the deed of transfer and other documents necessary for registration at the deeds office.

  1. Registration.

Once the deed of transfer and other documents have been lodged it, takes the deeds office about 7 – 10 working days to examine these documents. If the deeds office is satisfied that the requirement for the transfer of property has been met, the deed of property is registered. The conveyancer will notify the various role-players of the registration.

  1. Accounts.

Once registered, the conveyancer makes the necessary calculations and payments relating to the sale, for example, the estate agent’s commission, purchase price and so on. The conveyancer’s final account is also drawn up and sent to the purchaser and the seller for payment.

Having an experienced and expert conveyancer is extremely important to ensure that the transfer of property takes place quickly and efficiently.

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)

DO I NEED AN ANTENUPTIAL CONTRACT BEFORE MARRIAGE?

my-lawyer_images_nov-02An antenuptial contract is an important document that, under South African law, determines whether your marriage will exist in community of property or out of community of property, with or without the accrual system.

An antenuptial contract offers a number of benefits:

  1. Preventing your intended marriage from automatically being in community of property
  2. Offering transparency in your relationship by recording the rights, duties and consequences (legal and proprietary) of your marriage
  3. Preventing unnecessary disputes with your spouse down the line

What is 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.

What is an Antenuptial contract?

A contract entered into to regulate whether a marriage will be out of community of property with/without the accrual system. An ante nuptial contract must be signed by the persons entering into a marriage, two witnesses and a notary public, and it must be registered in the Deeds Registries office within the prescribed time period.

The accrual system

In a 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 ante nuptial contract must be entered into to indicate that the marriage will be out of community of property.

A marriage out of community of property WITH the accrual system is identical to a “marriage out of community of property” but the accrual system will be applicable. The accrual system is a formula that is used to calculate 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 ante nuptial contract.

Conclusion

After marriage, the terms of the antenuptial contract become irrevocable unless they are amended by an order of the Supreme Court or, in some cases, by a notarial contract which must be registered in a deeds registry.

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:

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

http://www.schoemanlaw.co.za/services/antenuptial-contracts/

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