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.

1. 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.

2. 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.

3. 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.

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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When couples divorce it’s often the children that feel the brunt of it. Sometimes it’s the other person in the relationship that suffers economically. Hence the reason there’s a legal duty towards maintenance after divorce, which is an obligation to provide for another person.

A child of a divorced couple, for example, may need help with housing, food, education and medical care. Maintenance could also be understood as providing the means for the person to have the necessary essentials. Maintenance duties is based on factors such as blood relationship, adoption, or that two people are/were married to each other.

This duty is also referred to as ‘the duty to maintain’ or ‘the duty to support’.

Which parent supports the child?

If a couple has decided on getting divorced, then the child has to be supported by both the parents, regardless if they’re living together or whether or not the child was adopted. In some cases, the grandparents are also responsible for the child’s maintenance, even if the parents weren’t married. This usually happens if the parents are unable to support the child.

What if the child is living with one parent?

In scenarios where the child is living with one of the parents, it is still the duty of the other parent to also contribute to the maintenance of the child. Many people in South Africa, especially women, face the reality of an ex-spouse who doesn’t live with the child and doesn’t want to pay maintenance. However, there is no legal way out of a parent contributing to a child’s maintenance, even if one of the parents re-marries.

What if you can’t find your non-paying ex-spouse?

If one of the child’s parents refuses to pay and doesn’t make their whereabouts known, then it is the responsibility of the state to claim maintenance from the unpaying parent. Maintenance investigators will try solve the issue and trace the person who is responsible for maintenance.

When does the maintenance end?

Until a child reaches the age of 18, his/her parents or another person (guardian) will have the parental rights and responsibilities for the child. This includes the maintenance of the child. So both the divorced parents of a child will have to contribute to the caring and maintenance of the child at least until he/she becomes an adult.

References:

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

Justice.gov.za. The Department of Justice and Constitutional Development, Family Law, Maintenance. [online] Available at: http://www.justice.gov.za/vg/children/ [Accessed 13/05/2016].

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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Maintenance is that part of the divorce order which is not a final determination of the rights of the parties, however, as long as there exists a Court order for maintenance for a certain amount, the person against whom a maintenance order was granted must abide by that order. In cases where the aforementioned party does not pay the maintenance or even fails to pay the entire amount, arrears will accumulate.

The person who is entitled to the maintenance may approach the Maintenance Court for an Application for Enforcement of Maintenance or Other Order in terms of Section 26 of the Maintenance Act, 1998. A party failing to pay maintenance will be in contempt of Court and would thus be guilty of a criminal offence. The party entitled to the maintenance may apply for an S31(1) Form which would result in the matter being dealt with in the Criminal Court.

However, the Maintenance Officer is aware that it is not possible for someone’s financial position to remain the same since the time of which the order is made until the party who is entitled to maintenance reaches a point of applying for an enforcement of maintenance order. Situations change, in some instances people become unemployed which may result in the party against whom the order was made, not being able to pay the same amount of maintenance. Another factor to consider is the fact that the needs of the person who is entitled to maintenance might change.

The party against whom the maintenance order is brought but is failing to pay because he no longer can afford to pay the amount stipulated in the order can bring an application for Substitution or Discharge of Existing Maintenance Order Complaint in terms of Section 6(1)(b) of the Maintenance Act, 1998. This person against whom this application is brought will receive a subpoena to be at Court on a certain date and time. The aforementioned party will have to present 3 months’ latest pay slips, 3 months’ bank statements, a list of proof of all expenses and a copy of his/her ID book.

The party bringing the application will also be requested to present documents to the Court. These documents may include: bank statements, salary slips, statements of monthly income and expenses, a list of movable/immovables and credit card statements.

The party will be subpoenaed to appear in front of the Maintenance Officer and their legal representatives may be present. This meeting with the Maintenance Officer is of a less rigid nature than appearing in Court in front of a magistrate and is of a more inquisitorial nature.

The Maintenance Officer will act as a neutral party. The legal representatives will go through the expenses of each party and find expenses on which the paying party can save money and vice versa in order to make payment easier and to make sure the other party’s luxurious lifestyle isn’t being maintained whilst the paying party hardly makes ends meet.

The Maintenance Officer will take certain factors into account when making an order. These factors may include: the standard of living of the parties, the financial position of both parties and the age of the parties. The Maintenance Officer will make an order which the parties will have to abide by.

In some instances, the father cannot pay the maintenance to his children himself and in those cases, the grandparents of the father will have to pay the maintenance of the grandchild as they also have a duty to support a minor child.

Reference List:

• The Divorce Act 70 of 1979
• The Maintenance Act 99 of 1998

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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Domestic partnerships, also known as cohabitation relationships, are becoming more common in our modern day society, and it therefore becomes ever more important for parties to understand the different legal implications of being married and merely cohabiting. Parties to a domestic partnership do not enjoy the same legal protection as married couples upon termination of the partnership with regards to maintenance claims, property division or succession.

In the South African legal system, there are three forms of fully legally recognised unions, namely marriages, civil unions and customary marriages. However, in our modern society it is becoming more common for couples to live together in domestic partnerships, without ever getting married. It is important for parties to these partnerships to realise that little to no legal protection is provided upon the termination of such a relationship, either by agreement or due to the death of either party.

The general rule for domestic partnerships was laid down in Butters v Mncora: A domestic partnership does not give rise to any special legal consequences, such as that of a marriage or a civil union.

In 2006, the South African Law Reform Commission acknowledged the need for legal protection to be granted and drafted the “Draft Domestic Partnership Bill.” Parliament has however shown no urgency to pass the Draft Bill, and the legal position in South Africa thus remains unchanged.

Maintenance claims

The Maintenance of Surviving Spouses Act entitles a surviving spouse of a marriage, and a surviving civil partner of a civil union, to institute a claim for maintenance against the estate of the deceased. This provides for a claim of any reasonable maintenance needs that they cannot provide for by their own means, until such time that they remarry or pass away.

Parties of a domestic partnership should note that this protection does not extend to domestic partnerships, and thus no such maintenance claim can be made. Should the Domestic Partnership Bill be enacted in the future, section 28 will offer such an opportunity to claim for maintenance. However, at this stage no such protection is afforded.

Property Division

Parties to a marriage have a choice of two matrimonial property regimes.  Simply put this is to be married either in community of property, or out of community of property. Each property system will have different consequences flowing from it either by law or contractually due to an Antenuptial contract. However, no property regimes exist for domestic partnerships, and thus no joint estate can exist as it would in a marriage.

The Supreme Court of Appeal has recently portrayed an increased willingness to extend contract-based legal protection to parties of a domestic partnerships. Contracts can be concluded by parties in domestic partnerships to govern aspects such as division of property upon termination of the partnership. Although these types of contracts are legally enforceable, they may give rise to potential problems. The contract may be concluded solely for the benefit of one of the parties, or circumstances may occur that the parties had not anticipated when the contract was drawn up. In practice however, it seldom happens that parties to a domestic partnership actually enter into a contract.  This may be due to a mutual decision, or due to the fact that parties did not foresee a need for such contract.

Intestate Succession

In terms of the Intestate Succession Act, a spouse of a marriage will inherit if the deceased spouse dies without making a will. This has been extended to include partners of a civil union and customary marriage. Provision for inheritance by a partner of a permanent same-sex partnership has also been made in terms of this Act. This has however not been extended to the termination of heterosexual domestic partnerships, and thus no claim can be made in terms of the Intestate Succession Act on the estate of a deceased partner of a domestic partnership.

Couples living together in cohabitation relationships do not have similar rights to institute claims against the other party upon termination as they would have in a marriage or civil union. This could leave financially dependent parties in unanticipated vulnerable positions.

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 List:

• Butters v Mncora 2012 (4) SA 1 (SCA).
• Barratt A “Private contract or automatic court discretion? Current trends in legal regulation of permanent life-partnerships” (2015) 26 Stellenbosch Law Review 110-131.
• Clark B “Families and domestic partnerships” (2002) 119 South African Law Journal 634-648.
• Intestate Succession Act 81 of 1987.
• Maintenance of Surviving Spouse Act 27 of 1990.
• Skeleton A (ed) Family Law in South Africa (2010), Cape Town: Oxford University Press.
• The Domestic Partnership bill in GG 30663 of 14-01-2008.

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

1. Basic information

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

2. A deposit and other fees

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

3. Responsibilities, repairs and maintenance of the premises

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

4. Subletting and limits on occupancy

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

5. Rent payment

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

6. Termination of lease

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

7. Pets

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

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

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Are you recently divorced and a stay-at-home parent? Know your rights and get what you deserve!

In South African law, section 7(2) of the Divorce Act deals with the payment of maintenance in situations where no settlement agreement has been entered into between the parties, and it’s up to the courts to deal with the matter of maintenance.

What happens if I get divorced?

Rehabilitative maintenance refers to divorce situations where a maintenance order is given for a certain time after the divorce is finalised. The court makes a decision based on certain factors, including; the divorcing couple’s current and potential future financial means, their ages, the length of the marriage, their standard of living before the divorce, and any behaviour that may have contributed to the divorce.

In South Africa, no maintenance will be awarded to someone who can support themselves, or has the ability to support themselves. If the stay-at-home parent has not abandoned or downscaled his/her career to stay at home to take care of the children, no maintenance will be awarded.

How can the law protect me?

An award for rehabilitative maintenance is usually given when the court finds that a marriage has significantly affected the ability of one person to support themselves. When maintenance is awarded, the court takes into consideration the amount of time it will take for the stay-at-home parent to upskill him/herself to re-enter the job market. In many cases, it isn’t possible for the stay-at-home parent to re-enter the job market, and they may find themselves without an income once the period of rehabilitative maintenance is over.

Courts need to look at how employable the stay-at-home parent is when he/she seeks a maintenance award. If employability isn’t possible, the stay-at-home parent should be granted maintenance until death or remarriage.

The ages of the couple’s children will also be taken into consideration, as well as which parent will be the primary resident parent. Rehabilitative maintenance could be awarded to the stay-at-home parent to take care of the children until they can support themselves.

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.w24.co.za/Work/Legal/Stay-at-home-spouses-divorce-and-maintenance-20150219

http://www.justice.gov.za/legislation/acts/1979-070.pdf

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Maintenance is the obligation to provide another person, for example a minor, with housing, food, clothing, education and medical care, or with the means that are necessary for providing the person with these essentials. This legal duty to maintain is called ‘the duty to maintain’ or ‘the duty to support’.

The duty to maintain is based on blood relationship, adoption, or the fact that the parties are married to each other.

An application for maintenance can be made against a defendant (person who must pay maintenance) at any Maintenance Court (“court”) in the district where the complainant (person who applies for maintenance) or the child, on whose behalf maintenance is claimed, resides or works.

The parents, guardians and/or caregivers of a child can apply for maintenance on behalf of such a child.

What should a person take to court when applying for maintenance?

• Identity document of the complainant.
• Complainant’s contact details, such as telephone numbers and home and work addresses.
• If maintenance for a child is claimed, the birth certificate of that child.
• If maintenance for the spouse is claimed, the marriage certificate or divorce order where maintenance order was granted.
• A full list of expenses and any proof of same, such as receipts.
• The complainant’s payslip and proof of any other income.
• As much detail as possible regarding the defendant, such as telephone numbers, home and work addresses, list of known income and expenses, and so on.

What happens after the application has been made?

• The maintenance officer will inform the defendant of the application and will hold an informal enquiry with the complainant and defendant being present.
• The defendant must take any proof of his/her income and expenses to the informal enquiry.
• The purpose of the informal enquiry is to assist the complainant and the defendant in reaching a settlement.
• If a settlement is reached, an agreement will be entered into between the complainant and the defendant, which will be made an order of court.
• If a settlement cannot be reached, the maintenance officer will place the matter before court for a formal enquiry to be held.
• The court will consider the facts and evidence of the claim and decide, by way of a maintenance order, whether maintenance should be payable and the amount of such maintenance.
• The complainant and the defendant must both be present at the informal and formal enquiry, and will be allowed to have legal representation.
• If the defendant fails to appear at the formal enquiry in court, an order may be given in his/her absence.
• It will not be necessary for the complainant and/or defendant to appear in court if they consent in writing to the maintenance order being granted.

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:

Justice.co.za

Legalwise.co.za

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If a couple has gotten divorced and they have a child, then it’s the responsibility of both parents to support the child. The duty to pay maintenance cannot be avoided, regardless of either parents’ situation. If one parent refuses to pay maintenance, then the other parent can go to a court and make a claim. Being a single parent doesn’t mean being the only one to contribute to maintenance.

What should I do about it?

To deal with a spouse who refuses to pay maintenance you would first need to inform the maintenance officer. The maintenance officer can apply to the court for:

1. A warrant of execution;
2. An attachment order against the defaulter’s salary;
3. An order to attach any debts; and
4. A criminal prosecution.

Does the non-paying parent have a defence?

The only defence that a parent could have for not paying maintenance is having a lack of income. However, if the parent is unwilling to work, such as laziness, then this will not count as a defence. Failure to pay maintenance is taken very serious, guilty parents won’t get much sympathy from the court or others. If the parent is capable of working, then they will be expected to pay maintenance.

But I can’t find my ex-spouse?

Non-paying parents may think that they’re being clever by changing their address and not notifying the court. This is considered a criminal offence, and will result in punishment. Fortunately, it’s not the responsibility of the single parent to find anyone. A maintenance investigator will track down and find a non-paying parent.

How to claim maintenance

If you want someone to pay maintenance or believe that they are not paying the proper amount, then you can follow these steps at your local magistrate’s court. Remember to go the court in the district where you live.

1. Go to the court and complete the form “Application for a maintenance order (J101)”.
2. Also submit proof of your monthly income and expenses.
3. A date will be set on which you and the respondent (the person whom you wish to pay maintenance) must go to the court.
4. A maintenance officer and an investigator will investigate your claim and look into your circumstances.
5. The court will serve a summons on the respondent.
6. The respondent then has to either agree to pay the maintenance, or challenge the matter in court.

If found liable to pay maintenance

If the court finds someone liable for paying maintenance, it will make an order for the amount of maintenance to be paid. The court will also determine when and how the payments must be made. There are several ways the payments could be made. The court can order that the maintenance be paid at the local magistrate’s office or that the amount to be paid into the bank account chosen by the person claiming. The payments could also just be made directing to them. According to the new Maintenance Act (1998), an employer can deduct payments from an employee’s salary, if they’re liable for paying maintenance.

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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When someone fails to pay maintenance in terms of a maintenance order you have the option of lodging a complaint against them with the Maintenance officer, stating that the person is legally liable to maintain, for example, yourself or your minor child(ren) and is not doing so. The Maintenance officer must investigate the complaint and may then institute an enquiry in a maintenance court. The Maintenance officer, not the complainant, decides whether to institute an enquiry.[1] In investigating a complaint about maintenance, the Maintenance officer may obtain statements or any relevant information pertaining to the payment of maintenance. An enquiry under the Maintenance Act is a procedure which empowers people to enforce their rights and those of their child(ren) at the State’s expense. During the course of a maintenance enquiry the parties usually come to an agreement and seek to withdraw the proceedings, or have the terms of the agreement made an order of court, which cannot be disregarded by the magistrate.[2] If the parties cannot come to an agreement the matter will be referred to the maintenance court.

Whenever a person against whom a maintenance order has been issued under the Act fails to make any payment in accordance with that order, the order is enforceable in respect of any amount that person has failed to pay, together with any interest:

1. by execution against property;
2. by the attachment of emoluments; or
3. by the attachment of debt.

If a maintenance order made under the Act remains unsatisfied for a period of ten days from the day on which the amount became payable or the order was made, the person in whose favour the order was made may apply to the maintenance court in which the order was made: 1) for authorisation of the issue of a warrant of execution, 2) for an order for the attachment of emoluments or 3) for an order for the attachment of debt. The application must be accompanied by a copy of the maintenance order or other order in question and a statement under oath stating the amount that the person against whom the order was made has failed to pay.[3]

Subject to the defence that failure to make a payment in terms of a maintenance order is due to a lack of means, a person who fails to make a particular payment in accordance with a maintenance order is guilty of an offence and liable to conviction with a fine or imprisonment for a period not exceeding one year, or to imprisonment without the option of a fine.[4]

On the application of the public prosecutor and in addition to or instead of imposing a penalty, a court convicting any person of the offence of failing to make a payment in accordance with a maintenance order may grant an order for recovery from that person of the amount he or she has failed to pay, together with any interest.[5]

Your best option would be to approach the Maintenance officer in order to reconcile the outstanding amounts. Thereafter, if the person still fails to effect payment, you can approach an attorney to either proceed with execution of the order, if the person has sufficient movable or immovable property, or obtain an emolument order which will be served upon the employer of the person (ordering the employer to pay the maintenance), or you may approach the maintenance court for an order for the attachment of any debt accruing, then or in the future, to the person responsible for paying maintenance.

[1] The Maintenance Act 99 of 1998.

[2] Young v Young 1985(1) SA 782 (C).

[3] The Maintenance Act 99 of 1998.

[4] Ibid.

[5] Ibid.

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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