Uncategorized – Schnetler's Inc

Investing in a rental property

client-admin — Tue, 16 Jul 2019 13:48:44 +0000

Buying a rental property could be an incredible investment opportunity, however, it’s important to make a well-informed decision before investing, as it is not for everyone. Although investing in a rental property provides many benefits, such as a potential extra income, and a way of paying off the property, it poses certain risks as well.

The following should be considered when deciding whether or not to invest in a rental property:

Calculate the upfront costs:

Calculate the ongoing costs:

Vacant rental properties:

Rent:

Rental agreement:

Taxes:

Potential tenants:

The above-mentioned points should be considered before investing in a rental property. As mentioned, it could be a sound investment and provide you with a potential extra income once the property has been paid off, however, if not done right, it could cost the property owner dearly, so be sure to make a well-informed decision before investing.

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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Claiming maintenance from parents living in foreign countries

client-admin — Tue, 16 Jul 2019 13:38:35 +0000

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.

References:

http://www.justice.gov.za/docs/articles/2009_foreign-maintenance.html
Maintenance of Children in Foreign Countries

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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Can I sue a shopping centre if I slip and fall?

client-admin — Tue, 16 Jul 2019 13:22:28 +0000

By law, owners of businesses or property are required to take reasonable steps to ensure the safety of the general public. At minimum, owners or managers are required to warn the public of any potential dangers they have caused, are aware of or believe could occur.

So if a shopping centre has not met these requirements and you're injured on their property as a result, you may have a valid claim. These are a few examples of the requirements shopping centres should have in place:

demarcate dangerous areas;
remove obstructions from walkways;
light an area adequately;
repair holes and cracks in the pavement; and
put up railings or barriers.

Would my claim be valid?

The law does not require individuals to watch their every step. It is reasonable to assume that people look around them as they browse grocery shelves at the shops. A successful slip and fall claim is mainly dependent on proving that the injured person was less negligent than the owner of the premises where they were injured.

Ask yourself the following questions:

Would a reasonable person, such as a property owner, foresee the reasonable possibility that his management or administration may injure another person, causing them to slip and fall?
Could the property owner have done something to prevent the accident that resulted in the claim. For instance, could the occurrence of a slippery floor have been prevented and could it have been mopped up before someone climbed the stairs?
Did the owner take steps to prevent the accident?

Details to collect if you want to make a claim

The details (name, contact number and address) of the person in charge of the premises.
Take photographs of the area where you were injured.
You must contact the legal representatives of the business.
You must get the relevant medical documents as well as the invoices detailing the procedures.

Reference

http://www.dsclaw.co.za/personal-injury-claim-slip-and-fallhttps://www.claimhelp.co.za/slip-and-fall/

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MAINTENANCE OF SURVIVING SPOUSE

SRA — Mon, 08 Apr 2019 11:10:32 +0000

The idea of freedom of testation is a core value of South African law and enjoys wide protection. The Maintenance of Surviving Spouses Act, 27 of 1990, was drafted to give a spouse legal recourse if disinherited or negatively affected by the wishes of the testator, or in the case of intestate succession. The goal of this piece of legislation is to ensure a person is not left destitute after the death of their spouse.Who can claim?The definition of the Act describes a surviving spouse as follows:

“survivor means the surviving spouse in a marriage dissolved by death.”

What can be claimed?

Section 2(1) of the Act determines as follows:

“If a marriage is dissolved by death after the commencement of this Act the survivor shall have a claim against the estate of the deceased spouse for the provision of her reasonable maintenance needs until her death or remarriage in so far as she is not able to provide therefor from her own means and earnings.

What is the definition of own means?

“own means” include any money or property or other financial benefit accruing to the survivor in terms of the matrimonial property law or the law of succession or otherwise at the death of the deceased spouse.”

What is reasonable maintenance means?

Section 3 of the Act determines as follows:

“Determination of reasonable maintenance needs – In the determination of the reasonable maintenance needs of the survivor, the following factors shall be taken into account in addition to any other factor which should be taken into account:

The amount of the estate of the deceased spouse available for distribution to heirs and legatees;
The existing and expected means, earning capacity, financial needs and obligations of the survivor and the subsistence of the marriage; and
The standard of living of the survivor during the subsistence of the marriage and age at the death of the deceased spouse.”

The executor of the deceased estate has to take the requirements above into account when determining the amount of the claim against the estate.

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MY TENANT FAILED TO PAY RENT: CAN I KICK HIM OUT?

SRA — Mon, 16 Apr 2018 14:48:23 +0000

If your tenant has failed to pay his or her rent, it can be tempting to simply kick them out yourself and change the locks. However, do so would be considered illegal, even if the tenant has become an illegal occupant. The reason is because of the PIE Act.

In sum, the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) (1998) provides procedures for eviction of unlawful occupants and prohibits unlawful evictions. The main aim of the Act is to protect both occupiers and landowners. The owner or landlord must follow the provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) (except in areas where ESTA operates) if they want to evict a tenant.

Who is covered?

Anyone who is an unlawful occupier, which includes tenants who fail to pay their rentals and bonds, is covered by PIE. It excludes anyone who qualifies as an ‘occupier’ in terms of the Extension of Security of Tenure Act

When is an eviction lawful?

For an eviction to happen lawfully, certain procedures must be followed. If any one of them is left out, the eviction is unlawful. So, if an owner wants to have an unlawful occupier evicted, they must do the following:

- give the occupier notice of his/her intention of going to court to get an eviction order.
- apply to the court to have a written notice served on the occupier stating the owner’s intention to evict the occupier.
- The court must serve the notice at least 14 days before the court hearing. The notice must also be served on the municipality that has jurisdiction in the area.

After a landlord intrusts their attorney to commence eviction proceedings, the following happens:

Typically, (except in a case of urgency, e.g. if the tenant is maliciously damaging the leased premises because he got notice to vacate) the attorney will call on the tenant to remedy the breach (usually failure to pay rent on time);

If the tenant fails to deal with the demand, the tenant will be considered to be in illegal occupation of the property;

The attorney then applies to court for permission to begin the eviction process. The court gives a directive as to how and on whom notice of eviction should be served;

The attorney doesn’t give the tenant notice at this time;

The application to court sets out the reasons for the application and the personal circumstances of the occupants;

If the courts are satisfied that it is fair to evict the tenant and all persons occupying the property with him, it gives a directive as to how the application for eviction must be served;

The sheriff then serves the notice of intention to evict on the tenant and the Local Municipality;

The occupants have an opportunity to oppose the application, and explain why they should not be evicted;

If there is opposition, the matter gets argued before a magistrate or judge, who decides whether an eviction order can be granted, and if so, by when the occupants should vacate the property within a stipulated time;

If the tenant does not oppose, the court will grant the eviction order;

If the tenant fails to move, the attorney will apply to Court for a warrant of ejectment to be issued by the Court. This process can take a further three to four weeks.

References:

http://www.passop.co.za/your-rights/housing-rights-pie
http://www.bregmans.co.za/can-evict-tenant-without-court-order/

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IMMEDIATE STEPS FOLLOWING THE DEATH OF A LOVED ONE

SRA — Tue, 13 Mar 2018 12:27:10 +0000

The death of a loved one is a difficult process to go through, and when the inevitable occurs, it is important to remember what happens next. The cause of death is determined under 2 categories: natural death, such as illness or heart attack, and unnatural death, such as a suicide or an accident.

Natural or unnatural death

If the deceased has passed in their home, and cause of death is suspicious, the family is required to contact the South African Police Service (SAPS) to conduct an immediate investigation before contacting the mortuary. In the event where death is natural, the family is required to contact medical professionals to determine the nature of the death, and sign certification of the cause of death.

Death certificate

A prescribed certificate may be issued by the medical practitioner if the death is ruled as natural, either following a period of illness, or a medical examination. Should it be suspected that the death is unnatural, the certificate may only be issued to the concerned police officer after an investigation where the corpse is no longer required for further examination.

An autopsy is not deemed necessary should the death be ruled as natural.

Registration of death may take be done the following places:

Department of Home Affairs
SAPS, if there are no Home Affairs offices available
South African Embassy or Consulate, should the death have occurred abroad
Registered funeral undertakers

An abridged death certificate is issued on the same day of registration, free of charge.

References:

Births and Deaths Registration Act 51 of 1992. (2017). [PDF] Cape Town: Government Gazette. Available at: http://www.gov.za/sites/www.gov.za/files/a51_1992.pdf [Accessed 31 Jul. 2017].

Dha.gov.za. (2017). Department of Home Affairs – Death Certificates. [online] Available at: http://www.dha.gov.za/index.php/death-certificates1 [Accessed 31 Jul. 2017].

Grange, H. (2017). What to do when someone dies | IOL. [online] Iol.co.za. Available at: http://www.iol.co.za/the-star/what-to-do-when-someone-dies-1810336 [Accessed 31 Jul. 2017].

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ANTENUPTIAL CONTRACTS: WITH OR WITHOUT THE ACCRUAL SYSTEM?

SRA — Mon, 15 Jan 2018 15:01:20 +0000

If you don’t have an ANC, you are automatically married in community of property. This means that there is one estate between a husband and a wife. Everything is shared equally between spouses, which includes debts. However, with an antenuptial contract, the estates of each spouse remain separate. The difference comes with the addition of the accrual system.

What is an antenuptial contract?

An ANC determines whether a marriage will be out of community of property with/without the accrual system. It 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.

What is the accrual system?

The accrual system is a formula that is used to calculate how much the spouse with the larger estate must pay the smaller estate if the marriage comes to an end through death or divorce. Only property acquired during the marriage can be considered when calculating the accrual.

If there is no accrual system, then the spouses have their own estates which contain property and debts acquired prior to and during the marriage – nothing is shared.
The underlying philosophy of the accrual system is that each spouse is entitled to take out the asset value that he or she brought into the marriage, and then they share what they have built up together.
The accrual system only applies if the marriage ends – either by divorce or death. You cannot claim your share of the joint estate while you’re still married.

Whether or not you decide to include the accrual system in your antenuptial contract depends on the couple. Some may see the relevance while others do not.

It’s important that both of you consult the lawyer who’s drawing up the ANC because both spouses need to be fully aware of the consequences. It’s also important to see someone who’s neutral, and who can mediate what goes into your ANC, because emotions can cloud your judgment, and it can be a stressful negotiation if one spouse has a lot of assets and the other doesn’t, for example.

References:

http://www.biznews.com/thought-leaders/2014/11/09/nine-things-need-know-antenuptial-contracts/

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

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VERHUUR VAN EIENDOM AAN BUITELANDERS

SRA — Mon, 27 Mar 2017 11:14:35 +0000

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?

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INHERITANCES AND TAX

SRA — Mon, 19 Sep 2016 14:27:35 +0000

IS TAX IMPOSED ON SUMS OF MONEY WHICH HAVE BEEN INHERITED?

Any asset which is attained by an heir to a deceased estate is termed as a ‘capital receipt’ and is not included in the heir’s gross income. Thus, tax is not payable by an heir who receives an inheritance from a deceased estate. Further, an heir to a deceased estate is not liable for payment of Capital Gains Tax (CGT). Any CGT which would be due by the estate is payable before the inheritance is transferred to the beneficiaries. As mentioned above, an asset does not give rise to a capital gain at the time of its inheritance – any capital gain or loss is only worked out once the asset is ultimately sold or disposed of in any other manner.

WHAT IS ESTATE DUTY?

During a person’s lifetime, all one’s income is taxable, that is, up until one’s date of death. After a person’s death, a new taxable entity is formed, which is called an “estate”. Every death must be reported to SARS, even if the estate is not liable for the payment of ‘Estate Duty’.

The estate of a deceased individual is subject to an amount of 20% Estate Duty. This percentage is only imposed once a deduction of R3.5 million against the net value of the estate has been taken into account. To illustrate this, see the worked example below:

Net value of estate: R4 million
Estate duty only dutiable on the amount exceeding: R3.5 million
Amount exceeding R3.5 million: R500 000.00
20% of R500 000.00: R100 000.00

Thus, the executor of the estate will be responsible for paying the amount of R100 000.00 to South African Revenue Service (SARS) in Estate Duty.

Estate Duty is due to SARS within one year of date of death, or 30 days from date of assessment if assessment is issued within one year of date of death. Currently, interest is charged at 6% p.a. on late payments.

Compiled by: Laura Ames

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APPOINTMENT OF THE EXECUTOR OF MY WILL

SRA — Mon, 25 Jul 2016 13:59:12 +0000

This is a subject which causes more and more discussion and people become more knowledgeable about Executor’s fees and how it is calculated once a person dies and his or her estate is left to the Executor to wind up.

The maximum Executor’s fee is fixed by law. The current maximum permissible Executor’s fee is 3.5% of the gross estate value plus 14% VAT (should the Executor be registered for VAT).

It seems as though this fee is very fair or even at a very low percentage, but let us illustrate with an example:

Let us suppose that the gross estate value is R2 million. Due to the drastic increase in the value of fixed property over the last few years it is quite possible to attain a gross estate value of R2 million and very realistic if you own fixed property.

R2 million x 3.5% = R70 000-00

Plus 14% VAT = R9 800-00

Total Executor’s fee = R79 800-00

This Executor’s fee does not include any additional administrative costs such as transfer fees of the fixed property or funeral costs. Thus it becomes clear that the cost of administering an estate to the value of R2 million could easily escalate to R100 000. The result is that more and more individuals consider appointing the person who lives longest or another family member as Executor, assuming that the appointed Executor is then enabled to negotiate an Executor’s fee with an institution or law firm which will then act as the appointed Executor’s agent.

It does happen, however, that the appointed Executor (e.g. the surviving spouse) is not well-informed about the actions he/she should take when his/her spouse dies, therefore he/she often appoints the first agent who offers his/her services. No negotiation takes place and the agent imposes the maximum tariff as fixed by the law.

Our recommendation is therefore the following:

Appoint the person who lives the longest or another family member as Executor of your estate, but ensure that the appointed Executor is fully aware of the fact that he/she may negotiate the Executor’s fee with an institution; or
Should you have every confidence in an institution, appoint that institution as Executor of your estate, but negotiate beforehand and fix the agreed tariff in your will. Do not leave it up to any other person to negotiate Executor’s fees after you have passed away.

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