Estate

PLANNING YOUR ESTATE AS NEWLYWEDS

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For newlyweds, one of the most important tasks to attend to is estate planning. The estate planning will depend on what the couple wants and what form of marriage they are in. It is therefore important to keep the following in mind when planning the years ahead together.

Marriage in community of property

There is a joint estate, with each spouse having a 50 percent share in each and every asset in the estate (no matter in whose name it is registered);

1. In the event of the death of one spouse, the surviving spouse will have a claim for 50 percent of the value of the combined estate. The estate is divided after all the debts have been settled in a deceased estate.

2. When drafting a Last Will and Testament, spouses married in community of property need to be aware that it is only half of any asset that he or she is able to bequeath.

3. Upon the death of one spouse, all banking accounts are frozen (even if they are in the name of one of the spouses), which could affect liquidity.

Marriage out of community of property without the accrual system

Each estate planner (spouse) retains possession of assets owned prior to the marriage. Each spouse’s estate is completely separated, even in the event of death. If you want your spouse to inherit something, you would need to outline this in your Will.

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 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.

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. (E&OE)

Property

WHY IS MY PROPERTY TRANSFER TAKING SO LONG?

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After signing a deed of sale, the purchasers often want to move into the property as soon as possible.  When they are informed of the process involved prior to the property being transferred this may damper their excitement. There may also be delays in the transaction.   In order to avoid unnecessary frustration, it is vital that parties to the transaction understand the processes involved and that delays are sometimes inevitable.

The deed of sale will normally be the starting point in a transaction for a conveyancer who has been instructed to attend to the transfer.  This conveyancer is also known as the transferring attorney and is normally the main link between the other attorneys involved the transfer transaction.

Postponements, delays and interruptions

  1. A major role of the conveyancer is informing any mortgagees, for example banks, about the transfer so that any notice periods for the cancellation of bonds can start running. The notice period is usually up to 90 days. The transfer may be delayed as a result of this notice period.
  1. Obtaining the various certificates, receipts and consents applicable to the transaction in question also takes time. Examples of these is the rate clearance certificate, transfer duty receipt, homeowners’ association’s consent to the transfer, levy clearance certificate, electrical compliance certificate and plumbing certificate. The time it takes to obtain these certificates will differ from case to case. After an inspection by a plumber or electrician, for example, it may be found that certain work needs to be carried out before the certificates will be issued.
  1. Once all the documents are lodged at the Deeds Office by the conveyancer, an internal process is followed, which has different time frames in the various Deeds Offices. This time frame can also vary in a particular Deeds Office. It is best to enquire from your conveyancer what the Deeds Office time frame is at any given stage.

There are many ways in which the transfer process could be delayed, these are just some of the examples. If you feel that the process is taking too long, then you should contact your conveyancer.

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. (E&OE)

Reference: Aktebesorging, UNISA 2004, Department Private Law, Ramwell, Brink & West

Uncategorized

VERHUUR VAN EIENDOM AAN BUITELANDERS

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Om eiendom in Suid-Afrika te verhuur, is ‘n eenvoudige proses. Die land beskik oor ‘n wye verskeidenheid huurakkommodasie, insluitend enkelwoonstelle in woonstelblokke, Victoriaanse kothuise, losstaande huise met groot tuine, en skakelhuise in moderne meenthuiskomplekse.

In Suid-Afrika is die reg van ‘n buitelander om vaste eiendom te koop, in die verlede beperk deur die Wet op Vreemdelingebeheer. Hierdie beperkings is egter in 2003 opgehef deur die nuwe Immigrasiewet (“die Wet”), wat die Wet op Vreemdelingebeheer en baie van die beperkende bepalings daarin herroep het en nou duidelik omskryf wie ‘n wettige buitelander is en wie nie. In kort, ‘n wettige buitelander is ‘n persoon wat in besit is van ‘n wettige tydelike verblyfpermit of ‘n permanente verblyfpermit wat deur die Departement van Binnelandse Sake goedgekeur is.

Die nuwe Wet maak voorsiening vir verskeie tydelike verblyfpermitte wat aan buitelanders uitgereik kan word, insluitend onder andere:

  • ‘n Besoekerspermit
  • ‘n Werks- en entrepreneurspermit
  • ‘n Afgetrede persoon permit

In beginsel mag ‘n huiseienaar of verhuurder wettiglik eiendom verhuur of vaste eiendom verkoop aan enige persoon wat volgens die Wet as ‘n wettige buitelander beskou word.

Buitelanders wat in Suid-Afrika werk met ‘n wettige werkspermit, word nie deur die Suid-Afrikaanse Reserwebank as nie-inwoners beskou nie. Hulle word as inwoners beskou vir die duur van die tydperk wat hul werkspermit toelaat en word dus nie beperk tot ‘n lening van slegs 50% van die koopprys nie.

Dit is ook belangrik om kennis te neem dat die Wet die verhuur of verkoop van vaste eiendom aan ‘n onwettige buitelander as krimineel beskou deur hierdie transaksie gelyk te stel aan die verleen van hulp en bystand aan ‘n onwettige buitelander, wat in terme van die Wet as ‘n kriminele oortreding geklassifiseer word.

Ten slotte, ‘n wettige buitelander mag eiendom huur of vaste eiendom in Suid-Afrika koop, mits hy die houer is van óf ‘n wettige tydelike verblyfpermit óf ‘n permanente verblyfpermit wat deur die Departement van Binnelandse Sake goedgekeur is. Doen deeglik navraag by u potensiële huurder of koper of hy wettiglik in Suid-Afrika is en versoek die vereiste bewyse van hom voordat u enige transaksie met ‘n buitelander aangaan. Neem ook kennis van die beperkings op plaaslike finansiering, veral waar die verkryging van finansiering ‘n voorwaarde van die ooreenkoms is.

Hierdie artikel bevat slegs algemene inligting en moenie gebruik of beskou word as regsadvies of ander professionele advies nie. Geen aanspreeklikheid word aanvaar vir enige foute of weglatings of vir enige verlies of skade weens vertroue op hierdie inligting nie. Raadpleeg altyd u regsadviseur vir spesifieke en gedetailleerde inligting. Foute en weglatings uitgesonder (FWU).

Verwysings:

http://www.expatarrivals.com/south-africa/accommodation-in-south-africa

http://www.avidfirefly.co.za/00000/index.php?option=com_k2&view=item&id=92:can-i-lease-or-sell-my-house-to-a-foreigner?

Property

WHAT DOES THE DEEDS OFFICE DO?

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The Deeds Office is responsible for the registration, management and maintenance of the property registry of South Africa. If you are planning on buying a house, it can be useful knowing about the Deeds Office. However, you would use the services of a conveyancer when buying or selling a house. Your estate agent should be able to recommend a conveyancing attorney to register your home loan and transfer a property into your name.

What is Conveyancing?

Conveyancing is the legal term for the process whereby a person, company, close corporation or trust becomes the registered and legal owner of immovable property and ensures that this ownership cannot be challenged. It also covers the process of the registration of mortgage bonds.

Steps taken by the conveyancer:

  1. The conveyancer lodges your title deed and other documents in the Deeds Office for registration. These documents will be individually captured on the system. If there is a bond, the conveyancer dealing with the bond will lodge the bond documents with the Deeds Office at the same time as the transfer documents. The transfer, bond and cancellation documents must be lodged in the Deeds Office at the same time to ensure simultaneous registration. If different conveyancers are dealing with registering the purchaser’s bond and cancelling the seller’s bond, then they will need to collaborate.
  2. The Deeds Office examiners go through the documentation that has been submitted, and make sure that it complies with the relevant laws and legislations.
  3. The examiners then inform the conveyancer that the deeds are ready to be registered.
  4. Registration takes place with the conveyancer and Registrar of Deeds present. The transfer of the property is then registered in the purchaser’s name. If there is a bond, it is registered at the same time.
  5. Upon registration, the purchaser becomes the lawful owner of the property. The title deed that reflects this ownership is given to the conveyancer by the deeds office after the registration. Unless a bond has been registered as well, in which case the title deed is given to the bond holder.

The time taken to register a property at the Deeds Office depends on various factors and a number of parties. On average, registering a property transfer takes six to eight weeks, although unforeseen difficulties can cause the period to be extended.

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.justlanded.com/english/South-Africa/South-Africa-Guide/Property/Conveyance

http://www.privateproperty.co.za/advice/property/articles/what-you-need-to-know-about-registering-a-property/5081

Property

CO-OWNING PROPERTY: THE UPS AND DOWNS

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What is Co-Ownership?

Co-ownership is when one or more people jointly own the same property. In essence, it is when 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 single property. The different shares can be recorded and registered in the title deed by the Deeds Office.

The Benefits

On paper, it’s a great idea. For starters, the bond repayments and costs of maintaining the home are halved. However, there can be problems and although not every friendship or relationship is destined to disintegrate, there does often come a time when one of the parties involved wants to sell up and move on to bigger and better things.

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, benefits and the obligations that flow from the property are shared in proportion to each person’s share of ownership in the property. For instance, one of the co-owners fails to contribute his share of the finances as initially agreed, resulting in creditors such as the bank or Body Corporate taking action to recover the shortfall.

Having an 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 if they should decide to go their 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 that the agreement which the co-owners enter into assists them in resolving disputes, with certain remedies being available to the parties.

The agreement should address the following issues:

  1. In what proportion will the property be shared?
  2. Who has the sole right to occupy the property?
  3. Who will contribute what initial payments to acquire the property.
  4. Who will contribute what amounts to the ongoing future costs and finances.
  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 the access bond must be regulated.
  8. A breakdown of the relationship between the parties.
  9. Death or incapacity of one of the parties.
  10. Dispute resolution options before issuing summons.
  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:

http://igrow.co.za/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

 

Marriage

DO I NEED AN ANTENUPTIAL CONTRACT BEFORE MARRIAGE?

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An 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 lineWhat is Marriage in Community of Property
There is one estate between a husband and a wife. Assets and liabilities 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?

This is a contract entered into to regulate whether a marriage will be out of community of property with/without the accrual system. An Antenuptial 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 Antenuptial 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 Antenuptial Contract.

Conclusion

After marriage, the terms of the Antenuptial Contract become irrevocable unless they are amended by a court order 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/

Antenuptial Contracts

Children’s Act

CLAIMING MAINTENANCE FROM PARENTS LIVING IN FOREIGN COUNTRIES

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A major concern many parents have revolves around the existence of maintenance orders from a South African court which requires enforcement against a non-compliant person who resides in a foreign country.

South African law allows its citizens to claim maintenance from a parent living in a foreign country. The Reciprocal Enforcement of Maintenance Orders Act 80 of 1963 is a piece of legislation which regulates foreign maintenance processes. To obtain maintenance for minor children in any foreign country it is advisable that an order for the maintenance of the minor children has first been made by a South African court.

It is important to note that not all foreign countries are recognised under the Reciprocal Enforcement of Orders Act.  Chief Directorate: International Legal Relations in the Department of Justice and Constitutional Development (DoJ&CD) has a list of proclaimed countries. This means such countries have a special arrangement with South Africa whereby maintenance orders granted in one country can be enforced in another.

The following documents where applicable must be transmitted to Head Office from our courts:

  • four certified copies of the provisional court order;
  • an affidavit by the complainant or an officer of the court as to the amount of arrears due under the order;
  • the deposition or evidence of the complainant;
  • physical, and or working address of the defendant;
  • a photograph and description of the defendant;
  • the original exhibits (marriage certificate, birth certificate, photographs etc.) referred to in the complaint’s deposition or evidence duly endorsed as prescribed/affidavit;
  • three certified copies of the documents referred to in (b) and (c) above and in the event of the High Court, four copies as well as an additional copy of the court are required.

Countries recognised under the Reciprocal Enforcement of Orders Act:

Australia, Canada, Cocoa (Keeling) Islands, Cyprus, Fiji, Germany, Guernsey (Bailiwick of Hong Kong), Isle of Jersey, Isle of Man, Kenya, Lesotho, Malawi, Mauritius, Namibia, New Zealand, Nigeria, Norfolk Island, Sarawak, Singapore, St Helena, Swaziland, United Kingdom, United States of America, Zambia and Zimbabwe.

If the foreign country in question does not have a reciprocal enforcement agreement with the Republic, the second option is to launch formal proceedings in the courts of the foreign country based on an already existing maintenance order. This option in most cases, tends to be an expensive process, takes an indeterminable amount of time and doesn’t always render favourable results.

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.justice.gov.za/docs/articles/2009_foreign-maintenance.html

http://mclarens.co.za/maintenance-children-foreign-countries/

Law

DOES YOUR BUSINESS NEED A LIQUOR LICENCE?

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Liquor manufacturers and suppliers require a liquor license, as regulated by the National Liquor Authority. If your liquor registration has been cancelled you cannot continue to trade. Trading without a license is an offence punishable by law.

What is the National Liquor Authority?

The National Liquor Authority is a regulatory body within the Department of Trade and Industry (the DTI) responsible for administering The National Liquor Act 2003 (Act No.59 of 2003).

What documents are required with my application?

  • A business zoning certificate for industrial purposes or a consent letter from the relevant municipality.
  • A comprehensive written representation in support of the application.
  • Any determination, consent approval or authority required by the Act.
  • Valid proof that the prescribed application fee has been deposited into the bank account of the Department of Trade and Industry.
  • A valid certified copy of ID of the applicant or a passport and trading business permit if the applicant is a foreigner.
  • A South African Police Services (SAPS) clearance certificate not older than three 3 months from the date of issue.
  • If the applicant is a juristic person, valid copies of registration issued by the Companies and Intellectual Property Commission (CIPC) or any other relevant registration authority indicating the financial interest of all members, shareholders, partners or beneficiaries as the case may be;
  • A valid tax clearance certificate if the applicant is a juristic person issued by the South African Revenue Services (SARS) within twelve months from the date of application.
  • Verification certificate issued in terms of the Broad Based Black Economic Empowerment Act (B-BBEE).

 

A liquor licence is an extremely important document to possess for those who are planning on trading in, or manufacturing liquor. It is an official document issued to a premise on which liquor is to be sold or manufactured. It can be a time consuming and painstaking process for an individual to obtain a valid liquor licence on their own. There are many complicated legal requirements and steps to follow before a liquor licence can be granted. It is also critical to obtain the correct classification of liquor licence for the premises and/or occasion or event.

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)

Family Law

CHILD CONTACT FOR DIVORCED PARENTS

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Contact refers to maintaining a personal relationship with a child. It entitles a person to see, spend time with (visit or be visited) or communicate (through post, by telephone or any form of electronic communication) with a child who does not live with that person. The child’s parent/s or a person other than the child’s parent/s (such as grandparent) can obtain the right to contact a child, provided that the contact would serve in the child’s best interests.

What will the court consider when granting an order in respect of contact?

  • The best interests of the child.
  • The nature of the personal relationship between the child and his/her parent/s.
  • The degree of commitment the parent/s has shown towards the child.
  • The extent to which the parent/s has contributed towards the expenses in connection with the birth and maintenance of the child.
  • The likely effect on the child of any change in the child’s circumstances, including the effect of being separated from the parent/s or brothers/sisters with whom the child has been living.
  • Any family violence involving the child or a family member of the child.
  • The need to protect the child from any physical or psychological harm that may be caused by subjecting or exposing the child to maltreatment, abuse, neglect, degradation, violence or harmful behaviour.
  • The child’s age, maturity, stage of development, gender, background and relevant characteristics of the child.
  • Any disability that a child may have and any chronic illness from which a child may suffer from.

A parenting plan will contain a clause setting out the reasonable contact that the parent of alternate residence shall have with the child during term time and school holidays, taking into account the child’s social, school and extra-mural activities.

​There are an infinite number of possibilities available when drawing up a parenting plan. Jobs, schools and a variety of other factors must still be taken into account. The bottom line is to find a plan that works for the whole family.

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/child-contact/

http://www.divorcelaws.co.za/the-non-custodian-parent-and-contact.html

Housing and property law

WHAT ARE THE DUTIES OF THE TENANT AND LANDLORD?

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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 carry out.

Non-Statutory Law (Common Law)

The tenant is obliged to:

  • Pay the full amount of rent on the date and time agreed upon by both the tenant and the landlord. The tenant is not entitled to a seven day grace period.
  • Take good care of the property and not use it for purposes other than for which it was let.
  • Restore it to the same condition in which it was received, at termination of the lease.

Statutory 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.
  • Take part in 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 the guarantee that the tenant will be afforded 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.

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:

http://www.privateproperty.co.za/advice/property/articles/tenants-rights-and-obligations/559

http://www.legalcity.net/Index.cfm?fuseaction=RIGHTS.article&ArticleID=2663821

http://www.chaseveritt.co.za/tenant-rights-south-africa