Property – Schnetler's Inc

My neighbours are renovating their house without complying with building regulations. What are my options?

client-admin — Mon, 14 Oct 2019 09:38:26 +0000

What one’s neighbour builds on their property, is not something the owner of the neighbouring property has a lot of control over. Unfortunately, it can have a negative impact on your property if the building work completed on your neighbour’s property does not comply with building regulations. Furthermore, it can be aesthetically displeasing, and be an eyesore eye to your property. Is there anything you can do in terms of the law to assist you in situations like these?

Buildings not complying with building regulations:

In the context of increasing state regulation, the adjudication of neighbour disputes about building has now apparently mostly migrated from the private law context of reasonableness to the public law context of legality. One consequence of this shift is that any building, first of all, has to comply with statutory and regulatory requirements before there could be any question about the reasonableness of any impact it may have on neighbours. Building works that do not comply with the applicable formal requirements (including permission to develop or subdivide, removal or amendment of restrictive conditions, compliance with zoning restrictions, and approval of building plans) are illegal regardless of their effect on neighbours.

To have these building works declared illegal (to have building work stopped or to have the completed building work demolished), neighbours do not have to prove that the buildings are unnatural, abnormal or unreasonable in the context – the mere fact that they do not comply with the formal requirements is enough to render them illegal. Building and zoning regulations are normally enforced by the relevant local authorities, but if they fail to do so, it has been decided that neighbours have the necessary locus standi to apply for a court order to enforce compliance with the relevant laws and regulations.

Remedies

The local authority or neighbours can obtain an interdict to stop the building work and – at least in some instances – an order to have the illegal buildings demolished.

It has been decided that the courts have the discretion to award monetary compensation rather than order demolition, but recently the courts have repeatedly stated that they will not be precluded from handing down demolition orders simply because buildings have been completed or because of the cost or value of completed building works or the hardship that the builder would suffer if a demolition order was granted.^[1]

Views, sunlight, natural flow of air, privacy

A landowner cannot complain generally speaking, when otherwise lawful building works on adjoining or neighbouring land obstruct her previously existing view across that land or her previously existing access to sunlight, natural light or the natural flow of air.^[2]

In De Kock v Saldanhabaai Munisipaliteit^{^[3]}, the applicant argued that the building plans approved with regard to neighbouring land had to be reviewed and set aside because the building, once completed, would allow the neighbours to see onto his property, thereby invading his privacy. The application was dismissed because the court found no indication that the local authority had failed to apply its mind or to consider the relevant legislation and regulations in approving the plans. The implication seems to be that a landowner does not have an independent, inherent right to oppose building works on neighbouring land that would afford a view onto his property.^[4]

Conclusion:

If a building does not comply with the relevant building regulations, or is not built according to an approved plan, an aggrieved neighbour’s primary remedy is to report the building to the municipality. The municipality is then supposed to interdict the person transgressing building regulations from building further and can even order for the demolition of an illegal structure. If the municipality fails in abovementioned duty, a neighbour can approach the court to enforce compliance with municipal regulations.

Building work which is only aesthetically displeasing or cause a loss of privacy, but adheres to all municipal regulations, will not constitute an actionable cause of action. The rationale behind this is because of the subjective nature of aesthetic considerations – what bothers one neighbour will not bother the next. Therefore, a neighbour’s remedies in this regard are very limited.

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

[1] AJ van der Walt, The Law of Neighbours, 1^st edition, (2010), p. 341-343
[2] Van der Walt, The Law of Neighbours, p. 356
[3] 7488/04 (2006) ZAWCHC 56 (28 November 2006)
[4] Van der Walt, The Law of Neighbours, p. 372

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Before signing a lease

client-admin — Tue, 06 Aug 2019 11:03:16 +0000

Tenants often take the signing of a lease agreement lightly and don’t read carefully through the terms and conditions. A proper lease agreement will ensure that both parties’ rights are protected. Landlords must ensure that they include all the necessary information in a lease agreement, while tenants must make sure that all the points discussed with the landlord are included in the lease, instead of just assuming that they are.

Enquire about costs and duration

rental cost and duration of the lease (including specific dates) must clearly be stated in the lease agreement to avoid any confusion regarding this matter. The lease agreement should also clearly indicate how and when any increases in rent will take place. If the landlord doesn’t provide you with this information, ask him/her to give it to you in writing so you can keep it on record.

The lease should also clearly explain any deposits (e.g. the rental deposit) that have to be paid, as well as the terms and conditions regarding the refund of deposits. All other variable usage expenses (like water or electricity) that the tenant will have to pay should also be clearly stated.

Some rental properties include utilities within the monthly rental cost, while others don’t. Some properties might offer on-site gym memberships, for example, which could save you money. Before you sign the lease to a property, ask your landlord what is included in the rental rate. Get information regarding changes to the property

Once the landlord has agreed to rent out his property to you, make sure that you document any pre-existing damages to the property and its amenities before you sign the lease. Ask whether these damages can be fixed at the landlord’s expense.

Both the landlord and the tenant are responsible for the maintenance of the property. The responsibilities of both parties should be clearly stated in the lease agreement. The lease agreement should also indicate how the tenant must report any problems that require repair.

Make sure which amendments can be made to the property. Rather know the rules and stick to them, instead of making an alteration and then finding out afterwards that your landlord is unhappy with it. Just imagine your landlord’s disgust after finding out that you’ve repainted his freshly white-painted walls red!

Conclusion

Tenants should be sure to understand the contents contained in the lease agreement and that they understand all the clauses, terms and conditions to avoid any surprises later. While renting a property isn’t as much of a financial commitment as buying a home is, tenants should remember that a lease is nevertheless a legally binding document, meaning that they should make sure that they agree with everything contained therein before they sign it.

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)

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LANDLORDS & TENANTS: CAN A TENANT CANCEL A LEASE?

Schnet_admin — Mon, 10 Jun 2019 12:27:03 +0000

When it comes to cancelling a lease early, both landlords and tenants must be aware of their responsibilities. It’s important to note that the Consumer Protection Act (CPA) has been put in place to protect consumers and it has changed the way that South Africans do business. The CPA also protects tenants in cases where they want to cancel a lease early.

According to the CPA, if a tenant provides the landlord with 20 business days’ notice, the tenant has every right to cancel the lease early. However, this does not mean that a tenant can just pack his/her bags and leave the property without facing some sort of penalty or financial repercussion. These penalties and financial repercussions can include a fair cancellation fee, cost of advertising as the landlord would have to advertise to find a new tenant to take the place of the old tenant, and any other costs deemed reasonable in the case that a landlord cannot secure a tenant in such a short time period.

It’s important to note, although a landlord can expect the abovementioned payments, a landlord cannot, under any circumstances, withhold a tenant’s deposit or expect the tenant to pay rent for the remainder of the lease. A landlord can also not charge a ridiculous and unreasonable cancellation fee. Additionally, a landlord may not withhold the deposit instead of charging a cancellation fee. Landlords tend to think that they can withhold deposits for almost any reason, and this is most certainly not the case.

Unfortunately, there are landlords who ignore the CPA and insist that the tenant pay rent until the lease comes to an end when a tenant cancels the lease early. So, is there anything a tenant can do if the abovementioned is the case? Yes. A tenant can approach the National Consumer Tribunal for assistance or contact the Rental Housing Tribunal.

Tenants need to ensure that they read the lease agreement very carefully before signing and to also make note of any provisions made in the lease agreement concerning the early cancellation of the lease as per the CPA. It is expected of landlords to be up to date and aware of the provisions laid out for early cancellation of the lease, but some are not, and this can cause immense problems for tenants. If your prospective landlord refuses to recognise the fact that you may cancel your lease early, consider renting another property. Also, consider renting a different property if the landlord insists on harsh repercussions in the case of early cancellation of 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)

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MOVING OUT? WHAT TENANTS NEED TO DO BEFORE MOVING OUT

Schnet_admin — Mon, 27 May 2019 10:03:56 +0000

We all know that moving can be stressful and time-consuming, but before you start packing your boxes, there are certain things that you need to keep in mind before move-in day.

As stressful and time-consuming as moving might be, it can also be exciting as you are moving on to better and greater things. However, as a tenant, there are certain things that you need to keep in mind before you move into your new dream home:

Lease agreement:

You’ve thought about moving for some time, and finally decided it’s time to move out of your current home. But first, make sure to review your lease agreement and familiarise yourself with all the terms and conditions therein. For example, it’s very important to know how long your required notice period is. Once you have familiarised yourself with all the terms and conditions, you will have a much better understanding of what is expected of you before you move out.

Letting your landlord know:

Most lease agreements stipulate that a tenant must give at least one month’s written notice before moving out. So, make sure to prepare your notice and communicate this to your landlord within the appropriate timeframe. In your notice, you can stipulate what date you will be moving out, what you might need in order to restore the property to its original state and you can request your deposit. However, if you plan on cancelling your lease early, make sure to request and receive permission from your landlord prior to moving out. If you don’t do this, legal action can be taken against you.

Inspect the property and fix any damages caused by you:

Depending on your lease agreement, you could be the one responsible for returning the property to its original state before you move out. That is why it is so important to be familiar with the terms and conditions found in your lease agreement. You need to inspect the property and look for any damages that could have been caused by you or damages that occurred while you were occupying the property. Make sure to take care of these damages, otherwise, your landlord could keep your deposit or only pay back a portion of it in order to pay for repairs.

Sort out all accounts linked to your property:

Before moving into your new home, make sure that all accounts linked to your previous home have been cancelled or moved and that you do not owe anything. These accounts include electricity, water, Wi-Fi, TV subscriptions etc. Also, ensure that all your service providers are aware of the move and provide them with your new address.

As a tenant, your home was never really yours, however, it remains your responsibility to ensure that the property is restored to its original state. Think to yourself, “Would I be happy if I received the property in this state?” It is recommended not to overlook these steps, as it will help to make the whole moving process run a lot smoother and you will get your deposit back quicker. It’s a win-win situation for both the tenant and the landlord.

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LAND EXPROPRIATION BILL

Schnet_admin — Mon, 27 May 2019 09:59:27 +0000

During 2018, the African National Congress (ANC) announced its intention to drastically speed up the land reform process in South Africa when President Cyril Ramaphosa announced that he would be proposing changes to section 25 of the Constitution of the Republic of South Africa (“the Constitution”) to allow for the expropriation of land without compensation.

In essence, expropriation of land occurs when the state takes land away from its owner for public use. Where land is expropriated without compensation, the landowner is not compensated for the value of the property lost. Currently, our Constitution only allows for expropriation with compensation.

The proposed changes to the Constitution elicited much debate, as there is a rigorous process to be followed to amend a right such as section 25, which forms part of the Bill of Rights. In terms of section 74(2) of the Constitution, the Bill of Rights may only be amended by the passing of a Bill which must be approved by the supporting vote of at least two thirds of the National Assembly, as well as the supporting vote of at least six of the nine provinces of the National Council of Provinces. Once voted on, the Bill must be drafted and published in the Government Gazette allowing the public 30 days to comment thereon. Only once this 30-day period has passed may the Bill be introduced to Parliament.

Importantly, amendments to a right in the Bill of Rights may only be made where they are in line with section 1 of the Constitution and do not stray from matters directly connected to the amendment. Section 1 states that the Republic of South Africa is founded on the value of supremacy of the Constitution and the rule of law. If the rights contained in the Constitution, as the supreme law of the land, were subject to constant change, its overall credibility and reliability would be in danger. The credibility and supremacy of the Constitution are pivotal, especially in light of apartheid which was enabled by the manipulation and strategic interpretation of laws.

Following the above-prescribed procedures, the ANC introduced the Land Expropriation Bill (“the Bill”) to Parliament in February 2018.

In terms of clause 7(1), an expropriating authority must serve a notice of intention to expropriate on the owner of the land and any other person who may hold a right in the property. Clause 7(2) specifies what is to be included in such notice.

There is a misconception that the Bill allows for the expropriation of land without compensation immediately and without recourse to the owner of the land or any person who has rights therein. This is incorrect. The Bill requires the landowner and the expropriating authority to negotiate and reach an agreement as to the amount of compensation payable to the landowner. Only once such an agreement of compensation payable cannot be reached, and 40 days have passed, may the expropriating authority decide whether or not to proceed with the expropriation.

Clause 12 states that the amount of compensation to be paid to a landowner must be just and equitable and reflect an equitable balance between the public interest and the interests of the landowner. Notably, clause 12(3) of the Bill states that it may be just and equitable for nil compensation to be paid to the landowner where land is expropriated in the public interest.

In sum, the Bill entitles an expropriating authority to expropriate land against a payment of compensation determined in terms of clause 12 of the Bill. This means that the compensation awarded must be just and equitable, which, where it is in the public interest, may be nil.

Reference List:

The Constitution of the Republic of South Africa, 1996.
Draft Expropriation Bill, 2019.
https://irr.org.za/reports/submissions-on-proposed-legislation/synopsis-of-submission-on-2019-expropriation-bill-19-02-19.pdf
https://businesstech.co.za/news/government/284510/section-25-amendment-south-africas-historical-moment-in-the-land-debate/
https://www.biznews.com/thought-leaders/2018/08/08/changing-sa-constitution-pierre-de-vos

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WHAT TO LOOK OUT FOR BEFORE BUYING A PROPERTY

SRA — Mon, 08 Apr 2019 11:21:53 +0000

You’ve searched far and wide for the perfect home for you and your family, and you’ve finally found it, or so you thought. Buying a home, especially for the first time, is as overwhelming as it is exciting.

You’ve viewed your dream home, but remember, you receive so much information during your viewing, that you could easily become overwhelmed and miss important details. Especially if you have fallen in love with your potential new home. It is important to remember that there are various “red flags” that you need to look out for before purchasing, as missing these “red flags” could have significant financial repercussions. Before signing, make sure to look out for the following:

1.Foundation and structural faults

What do you think is the most important part of a house? The double garage? The interior? How well-lit the rooms are? No. The most important part of the house, and arguably the costliest to repair, is the foundation of the house. Make sure to look out for large cracks in the walls, as this could be a sign of some serious structural problems with the foundation. Make sure to thoroughly investigate the door frames; if door frames don’t appear to be square or if the doors have difficulty closing, it could be a sign of structural problems.

2.Poor drainage/grading

In most cases, water problems in a house are directly related to poor drainage or grading. However, it is often difficult to detect if a house has poor drainage or grading. An obvious sign of the above-mentioned faults is pools of water or a bouncy bathroom floor which could indicate that there is a leaking shower drain. Make sure to also look out for overflowing gutters, water stains and cracks in the foundation.

3.Patches of fresh paint

A coat of fresh paint is an excellent and quick way to spruce up your home, but if there are random patches of fresh paint around the house, it could be cause for concern. Why? Because it is possible that the seller is trying to hide something beneath the coat of paint.

4.Faulty electrical wiring

If you are looking to buy an older home, make sure that the electrical wiring is not faulty, as house fires caused by faulty wiring is not as uncommon as we would hope. This is especially the case in older homes, as these homes don’t always have an ample supply of power and the number of electrical outlets like newer homes have. Also look out for any exposed wires, as this could cause significant harm to either the home or your family.

5.Neighbourhood condition

When looking for your perfect home, always remember that you are not only investing in the property itself, but also in the neighbourhood. Make sure to ask enough questions about the neighbourhood. For example, if you move into a neighbourhood that is deteriorating or crime-ridden, it could have a significant impact on your return on investment.

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WHAT DOES 2019 HAVE IN STORE FOR THE ECONOMY AND THE PROPERTY MARKET?

SRA — Mon, 18 Mar 2019 12:39:54 +0000

There is no doubt that 2018 was a very challenging year for both the economy and the property market. As 2019 is in full swing, you can’t help but wonder what challenges this year will hold for both the economy and the property market. In 2018, it was mainly business as usual, however, it is important to note that the demand for properties between the 3-million and 5-million mark decreased through the year. Reasons for this could have been the weak economy, political uncertainty and land ownership concerns.

So, what will the market have in store for home buyers/sellers in 2019?

It is argued that the market will most likely remain flat during the first few months of 2019. The reason being that we are heading towards the May elections, and this could be a turbulent period in 2019. In terms of the economy, there is a feeling of positivity in the air as the economy is expected to start lifting in the middle of 2019. The feeling of positivity can be attributed to the fact that the rating agencies have kept a stable outlook and President Ramaphosa has shown his commitment to eradicating corruption within the government.

It’s important to note that the final quarter of 2018 also had an impact on the economy and the property market for 2019. The festive season has come and gone, and as can be expected, many consumers found themselves indulging in the festivities and overspending. This has impacted many South African households’ finances, as there is now an increased pressure to meet monthly commitments in terms of housing bonds and rents. This should only have an impact on the economy and the property market in the early part of 2019.

It is also expected that the interest rate will go up with 2% over the next 18 to 24 months. This will, without a doubt, put even more pressure on household finances, in terms of higher bond and credit repayments, as well as cost hikes. This will have a huge impact on affordability.

If you are planning on buying or selling property in 2019, it’s important to keep price expectations realistic. Buyers should also strike while the iron is hot and not wait for too long, as all economies and property markets are subject to ups and downs. In conclusion, 2019 is the perfect year to buy property. Ensure that you do your research and make well-informed decisions when it comes to the property you want to buy, as well as the purchase price of the said property.

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RENTING PROPERTY UNDER DEBT REVIEW

SRA — Wed, 20 Feb 2019 12:46:07 +0000

“I’ve been struggling to pay off my debt and to manage my finances. As a result, I am now under debt review. Can I still rent a property even though I am under debt review?”

The answer, in short, is yes. The process of debt review is considered to be a saving grace for those who are struggling to pay off their debt and manage their finances. Even though debt review helps you with your financial management, it is common to also feel limited by the debt review. Whilst under debt review, you can’t take out new loans, as debt review is designed to help you settle your current debt. You may, however, have additional financial concerns when under debt review, for example, the question of whether you can rent a property while under review.

Debt review is not a credit agreement itself, which means that if you are under the debt review process, you can still rent a property. In addition, there are absolutely no legal requirements that state that an individual who is undergoing a debt review, cannot rent a property or be party to a lease agreement.

It is important to remember that when you apply for a rental, real estate agents, as well as landlords, will run a full background check on your financial situation, which includes credit agreements, judgements, defaults and whether you are currently under debt review. Take note that if you are deemed unfit for the rental, it will be a result of some other factor, as real estate agents are not permitted to deny your application solely on the fact that you are under debt review.

How can you increase your chances of securing a lease agreement while you are under debt review? It is common for real estate agents and landlords to still have some concerns with regards to your debt review status. To settle these concerns, your debt counsellor may provide the real estate agent or landlord with a proof of budget that indicates that you are in fact able to afford the rental amount every month. You may also provide the real estate agent or landlord with bank statements that indicate that you can afford the rental amount. You can also offer a double deposit, or another person to co-sign the lease with you.

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TIPS FOR RENTING OUT YOUR PROPERTY

SRA — Wed, 20 Feb 2019 12:45:58 +0000

Regardless of whether the property you are renting out is a studio apartment, a cottage at the back of the garden or an entire estate, the same rules apply and need to be understood in order to make a success of your investment in the property. To invest in a property is a very big commitment and you don’t want to end up in a situation where you lose on the investment because you didn’t follow all the necessary steps to prevent this from happening.

Handle your tenants constructively

Establish a fair system of setting, collecting, holding, and returning deposits. Inspect and document the condition of your property before the tenant moves in to avoid conflict regarding the refund of deposits. This inspection should preferably be done with the tenant being present.

Try to resolve disputes with your tenants without the involvement of lawyers and lawsuits. If you’re having an argument with a tenant that doesn’t immediately call for an eviction, meet with them and try to resolve the problem in person.

Keep your tenants happy

Keep up to date on maintenance and repairs needed to the property and make sure these are done when the tenants request any work to be done. If your property is not kept in good condition, good tenants will not want to stay on. Remember, your tenants are your customers, make sure they are happy.

Although it is recommended to inspect your property from time to time to check that the condition of your property is up to standard, you must remember that your tenants’ privacy must be respected at the same time. Notify them if you’re planning to inspect the property and make sure to let them know a while in advance.

Make sure the property is safe

Don’t let your tenants and property be easy targets for criminals. If the property needs security additions, take the necessary steps to protect it. Proper lighting, trimming tree branches that hang over the wall and efficient security gates are often all that is needed.

If there is a hazard such as mould due to leaks, your tenants should be informed beforehand and steps should be taken to fix the problem. If your tenants later suffer from health problems that can be linked to the hazard in the property, you might be held responsible.

Conclusion

It is advised to document everything possible regarding the renting of your property – from the rental contract to how you handle complaints. Remember that it is of utmost importance to get insurance for your property. You must protect yourself against possible losses to your rental property caused by anything from vandalism to natural hazards.

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PLANNING YOUR ESTATE AS NEWLYWEDS

SRA — Wed, 20 Feb 2019 12:45:49 +0000

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);

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.
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.
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.

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