She admits that, since her husband has been retrenched, they have been in arrears with the rental. The couple had offered to repay the amount in instalments or set up a debit order, but received no response.

The reader would like to know whether they could give their landlord one month’s notice or whether they should wait for him to obtain a court order evicting them.

According to Schalk van der Merwe from Rawson Properties Helderberg, the non-payment of rental means the reader is already in breach of the lease agreement.

“Depending on the terms of the agreement, the landlord would usually give her notice of the breach, affording her an opportunity to rectify it.”

Van der Merwe says if the lease was concluded after April 1 last year and is for a fixed period, the provisions of Section 14 of the Consumer Protection Act will apply.

“This section only allows a landlord to cancel a lease once the tenant has been given 20 working days’ notice to remedy the breach but fails to comply.”

Failure to pay the arrears or make suitable alternative arrangements would in all likelihood result in the landlord cancelling the lease, says Van der Merwe.

“Whether or not these steps have been taken by the landlord is not made clear by the reader. She only mentions the text message ordering them to vacate the premises within 10 days.”

In terms of the provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land (Pie) Act, Van der Merwe says no one may be evicted from a property without a court order.

“A landlord wishing to evict an unlawful occupier has to institute legal action to initiate the procedure.”

Lucille Geldenhuys from Lucille Geldenhuys Attorneys in Stellenbosch says a notice authorised by a magistrate must be served on the unlawful occupier as well as the municipality, at least 14 working days before the eviction hearing. “This gives the tenant the chance to oppose the action.”

Geldenhuys says a court hearing will determine whether the landlord is entitled to an eviction, taking into account issues such as the rights and needs of children, the elderly and households headed by women.

“If the court finds that the owner is entitled to an eviction order, it will also assign a date by which the tenant must vacate the premises. The owner may call in the sheriff to remove the occupier, should he or she fail to do so.”

In this instance, says Geldenhuys, it would appear that the landlord might be acting unreasonably by not allowing the reader to pay off the arrear rental in instalments.

“If the reason for the arrears is the retrenchment issue, and if the reader has offered to settle the debt in another manner, then it would seem unlikely that a court will grant an eviction order.”

Geldenhuys says the reader may consider consulting an attorney to advise her on her rights, or she may use the protective measures in the Rental Housing Act should she feel that her rights are being negatively impacted upon.

To ask a property related question, visit www.propertyposer.co.za.

A reader writes that her neighbour planted a hedge on her own side of a shared boundary wall but that, over time, the hedge grew and covered the whole wall, including the reader’s portion.

She says she did not have a problem with this because the original wall was quite low and the hedge actually provided additional privacy.

Unfortunately, the neighbour recently decided to trim it down to wall height on both sides.

The reader is unhappy that her portion has also been cut down and feels that her neighbour infringed on her property rights, as she clearly had to lean over her wall to reach the hedge.

She would like to know what her rights are in this regard.

This situation is slightly different from the usual boundary issues, says Schalk van der Merwe from Rawson Properties Helderberg.

“Most neighbours complain about overhanging branches encroaching on their properties and demand that they be cut down.”

Van der Merwe says, as a landowner, you are entitled to enjoy, use, consume, convert, alter or destroy your property and what the land produces in any way you please within the limits of national and local authority regulations.

“This is provided you do not interfere with the legal rights of others, including your neighbours’ rights to the same enjoyment of their property.”

It is helpful to think of the boundary between properties as the point where your rights end and those of your neighbour begin, says Van der Merwe.

“If branches of a tree growing on an adjoining property overhang your property, you may ask your neighbour to saw them off and remove them from your land.”

If your request is denied, you may saw the branches off to the extent that they overhang, although you may not keep them unless your neighbour refuses to collect them, says Lucille Geldenhuys from Lucille Geldenhuys Attorneys in Stellenbosch.

“You may then recover from your neighbour the reasonable expense of removing the branches.”

Alternatively, says Geldenhuys, you may force your neighbour to remove the offending branches by obtaining an interdict, compelling him or her to do so.

“On the basis of the above principles, it would appear that, in this instance, the neighbour may have had the right to remove branches and foliage comprising the hedge, insofar as these originated on her side of the wall and encroached on the reader’s property.”

However, by doing so, the neighbour appears to have infringed on the reader’s property rights by trespassing in order to do so, says Geldenhuys.

“Our reader’s remedy may be tricky as, from a civil law perspective, the damages must be proved and quantifying them could be difficult.”

A criminal charge of trespassing may be possible but, says Geldenhuys, the reader should consider whether pursuing this approach would benefit the already difficult relationship between them.

To ask a property related question, visit www.propertyposer.co.za.

She explains that she pays her rental in advance and her utilities in arrears and settles them jointly around the 27th, even though her lease stipulates that they are only due at the end of the month.

Recently, her landlady obtained an up-to-date municipal account and insisted that the amount was payable by the 7th even though, in the normal course of events, the reader would have paid it at month-end.

The landlady even went as far as disconnecting the electricity as a result of non-payment. The reader would therefore like to know what her rights are.

In the absence of further information, one must assume that the rental agreement stipulates that the utilities are payable with the rental on or before the end of the month, says Schalk van der Merwe from Rawson Properties Helderberg.

“The landlady is therefore acting in breach of the agreement between the parties.”

Furthermore, says Van der Merwe, the provisions of the Rental Housing Act state that it is an unfair practice for a landlord to unlawfully shut off the utilities to a rented property.

“The regulations provide that a tenant may lodge an urgent complaint with the Rental Housing Tribunal for spoliation or an interdict.”

Van der Merwe says the landlord may not interrupt the supply of services to the tenant’s dwelling without a court order and a landlord who fails to comply may be liable for the payment of a fine or even imprisonment.

The courts do not want people to take the law into their own hands, says Lucille Geldenhuys from Lucille Geldenhuys Attorneys in Stellenbosch.

“When a person owns or is using something like municipal services that is then taken away from them, he or she can apply for a spoliation order for its restoration.”

Geldenhuys says the investigation does not take into account whether the previous user or owner had lawful rights to the item or services, simply whether the current user (tenant) was in peaceful possession thereof and that it was taken away.

“The merits of the matter will be investigated at a later stage should the parties take it further.”

The appropriate remedy for the reader is therefore to approach the tribunal for urgent relief, says Geldenhuys.

“If our reader requires quicker assistance, she might seek the assistance of an attorney who could warn the landlady of the consequences of her actions should she continue to take the law into her own hands.”

To ask a property related question, visit www.propertyposer.co.za.

This week a buyer tells us that the transfer of his property is still in progress but substantial leaks in the roof have been discovered.

When the reader reported it, the estate agent obtained quotations for the repairs and a claim was instituted with the relevant insurer. It has subsequently transpired that the insurer will not cover the claim and it also appears that the seller will not accept the quotations.

As we have mentioned before, in order to find a solution, one has to distinguish between latent and patent defects, says Schalk van der Merwe from Rawson Properties Helderberg.

“A patent defect is something that is, or should be, identifiable upon inspection of the property in a reasonable manner. Examples include wall cracks, broken windows, missing tiles and so on.”

A latent defect on the other hand is not apparent during an ordinary inspection by a reasonable buyer, says Van der Merwe. “It includes faults that are not immediately obvious and are hidden from view, such as dampness behind a piece of furniture.”

Van der Merwe says it is important to remember that the test is objective – it takes into account what could have been seen during the original inspection of the property, not only what the buyer did, in fact, see.

“A leaking roof is not something that would necessarily be visible upon inspection, unless there is evidence of watermarks on the ceilings.”

The reader has not indicated whether he had noticed any problems or asked any pertinent questions during the initial inspection, says Van der Merwe.

Lucille Geldenhuys from Lucille Geldenhuys Attorneys in Stellenbosch says the question of whether or not the seller was aware of the leak also needs to be considered.

“Had be been aware and not disclosed it, the purchaser may have a claim varying from a reduction in the purchase price to claiming for repairs. He could possibly even seek to cancel the contract, if he can show that he would not have bought the property had he known about the defect.”

Geldenhuys says the Consumer Protection Act is only helpful in such a situation if the transaction falls within the provisions of the Act. “The Act is applicable to transactions that are concluded in the ordinary course of the seller’s business.”

For example, a developer who builds and sells properties and enters into sale agreements as part of his daily business dealings would be subject to the Act, says Geldenhuys.

“Whereas property speculators fall under the same classification, once-off transactions, such as when individuals sell their homes, are not subject to the Act.”

However, says Geldenhuys, the estate agent’s service is regulated by the Act even if the transaction is not, therefore the agent must ensure that he or she markets a property responsibly by obtaining as much information as possible from the owner.

To ask a property related question, visit www.propertyposer.co.za.

A reader writes that, a few years ago, her son and his wife suggested that their double garage be converted into a flatlet for her and her partner. Part of this arrangement included that a new double garage be constructed on the property.

The financing for these alterations was provided by the reader who raised a bond on another erf she owns. She also agreed to pay the monthly electricity charges in respect of the whole property, not only the flat, while her son and daughter-in-law would take care of the rates and garden services.

Unfortunately, four years later, the reader’s son and his wife got divorced. He moved out and his ex-wife remains on the property with his mother.

Our reader’s concerns relate to whether her son’s ex-wife can evict her from the property without refunding her for the improvements made at her own expense.

Her former daughter-in-law refuses to reduce the agreement between them to writing and the reader is concerned what the effect will be on her rights, particularly when she reaches retirement age.

There are two aspects that need to be considered says Lucille Geldenhuys from Lucille Geldenhuys Attorneys in Stellenbosch. “Firstly, the right to live on the said property and, secondly, the improvements on someone else’s property paid for by the reader.”

In the absence of the right to live on the property being registered against the title deed, which it does not appear was the case here, it simply remains a personal right, says Geldenhuys.

Should the owner of the property commence with eviction proceedings, Geldenhuys says the terms of the agreement may be used as a defence.

“The oral nature of the agreement doesn’t make it any less binding, it is simply more difficult to prove its terms.”

According to Schalk van der Merwe from Rawson Properties Helderberg, there are a few important aspects to highlight as far as improvements to the property are concerned.

“In this instance, it is clear that the owner of the property consented to the improvements that were made and these almost certainly increased the value of the property.”

In the event of the reader being successfully evicted, for whatever reason, Van der Merwe says she certainly has grounds for compensation.

“It is clear that there is a basis for a claim against the owner, whoever that may be, founded on the improvements made to the property.”

To ask a property related question, visit www.propertyposer.co.za.

In this instance, the driveways of the complex had to be resurfaced with tar and a special levy was raised to cover the cost. The reader reports that the first section was very poorly done and it was not long before the tar started lifting and sticking to car tyres.

In the end, only a small number of the driveways were completely retarred, with the rest of the surfaces simply being patched, leaving unsightly areas of tar.

Despite complaints from the residents, the trustees have not held the contractor accountable for his poor workmanship.

He has already been paid in full and the reader would like to know what recourse residents have against the trustees for being remiss in their duty to ensure that the work was done properly.

The trustees are in a fiduciary relationship to the body corporate, says Schalk van der Merwe from Rawson Properties Helderberg.

“This implies that every trustee must act honestly, in good faith, and in the best interests of the owners and the body corporate at all times.”

Van der Merwe says trustees must understand the consequences of their control and management of the sectional title scheme. “If a trustee is found guilty of gross negligence, he or she can be held personally liable for the financial damages.”

If one considers the trustees’ fiduciary responsibility to the body corporate, it becomes apparent from the common law that they have a duty of trust, as well as a duty of care and skill, says Van der Merwe.

“Our reader and the other residents may therefore rightly ask whether the trustees have properly exercised the duty of care and skill in accepting the workmanship of the contractor.”

As elected officials, the body corporate may demand that the trustees remedy the current situation, says Lucille Geldenhuys from Lucille Geldenhuys Attorneys in Stellenbosch.

“Of course, if they’re not satisfied with the manner in which the trustees deal with it, the body corporate may choose not to re-elect them or even to remove them at a special general meeting.”

Only where it appears that the trustees had acted with mala fides (bad faith) or gross negligence can they be held personally liable for their actions, says Geldenhuys.

“In the absence of further evidence it is very difficult to determine whether that was indeed the case in this instance.”

Geldenhuys says the trustees’ documentary evidence in the appointment of the contractor and their endeavours to enforce the warranty should provide some assistance in this regard.

To ask a property related question, visit www.propertyposer.co.za.

This week one of our readers shares her distress over the state of the vibacrete wall that divides her property from her neighbours’.

Some of the panels are broken or missing but the neighbours are not in a financial position to make any kind of repairs to the wall.

The reader is concerned that if she builds a new wall, the neighbours will simply break down the existing one and benefit from its replacement.

She is also not keen to build the wall on her property only, feeling that the neighbours will gain an unfair advantage from this in that their garden area will be increased by the boundary shift.

Lucille Geldenhuys from Lucille Geldenhuys Attorneys in Stellenbosch says the reader has touched on a critical aspect relating to boundary walls. “It is very important to determine on whose property the wall is situated.”

If the boundary markers are not visible, a surveyor may be called in to determine on whose property the wall lies, says Geldenhuys.

“If a wall is situated on only one of the properties, it will be that owner’s full responsibility to maintain and repair it.”

It is equally possible, Geldenhuys says, that the wall may straddle both properties.

“Should the wall be jointly owned by both neighbours, this would mean that each would be obliged to contribute to the maintenance and repairs.”

Geldenhuys says an owner can, however, refuse to contribute to the cost of an unreasonably expensive new wall.

This means that the reader may not necessarily insist that a brick wall be erected in place of the existing vibracrete one or hold her neighbours accountable for half the cost, says Schalk van der Merwe from Rawson Properties Helderberg.

“Generally, as each owner benefits from the existence of a boundary wall, it has become commonplace for neighbours to take care of the side facing their property.”

Van der Merwe says such care usually amounts to minor repairs and possibly the painting of the wall from time to time.

“A more cost-effective option in this instance may therefore be to look at repairing the existing wall and replacing the missing panels, even if the defaulting neighbour is not in a position to contribute.”

This offers a middle-ground solution as the reader will most definitely benefit from the newly mended wall, says Van der Merwe.

“This also removes the expense of a new wall and the associated loss of garden area.”

To ask a property related question, visit www.propertyposer.co.za.

Despite the negligible rental, the reader says the tenant pays irregularly and has made changes to the property without her consent.

The tenant is now claiming that the owner owes him money, based on the improvements made, and she would like to know what her remedies are.

Since it appears that there is no written agreement between the parties, we will consider the common law relating to the situation, says Schalk van der Merwe from Rawson Properties Helderberg.

“There is a distinction between so-called useful and luxurious improvements on the one hand and necessary improvements on the other.”

While the first can be removed by the tenant (provided this is done without causing damage), the second cannot, says Van der Merwe.

“In the latter instance, the tenant could claim compensation, which is calculated on the value added to the property by the improvement or the actual expenditure, whichever is the lesser.”

Van der Merwe says the reader has not specified what kind of changes the tenant made to the property.

“The landlord is obliged to maintain the dwelling in compliance with all ordinances, health or safety regulations, and other laws.”

Therefore, if the tenant made repairs that qualify as necessary maintenance, for which the landlord should be responsible, he may well be entitled to reimbursement for the money spent, says Van der Merwe.

“Should compensation not be excluded by means of a contract, which seems likely in this case, the tenant may have a claim based on the landlord being unjustifiably enriched.”

It is a principle of our law that no person should be unjustifiably enriched to the detriment of another, says Lucille Geldenhuys from Lucille Geldenhuys Attorneys in Stellenbosch.

“A tenant who has improved a property with the owner’s consent by installing, say, built-in cupboards, could reasonably be entitled to compensation when the lease expires.”

Geldenhuys says the owner may be entitled to the improvements, but not without paying compensation, as this would arguably constitute unjustified enrichment.

“While a lease is not required to be in writing, an instance like this highlights the advantages of concluding such an agreement.”

According to Geldenhuys, the contract could have made provision for this very situation, thereby eliminating any confusion as to what monies may be owed by one party to the other.

“A useful starting point would be for the landlord to establish the nature of the improvements and the extent thereof.”

Geldenhuys says she should arrange for an inspection of the property and improvements by giving the tenant reasonable notice of her intent to do so.

To ask a property related question, visit www.propertyposer.co.za.

The tenant is two months in arrears but has offered to repay the money in instalments.

However, the landlord is not satisfied with his offer and has demanded, via the rental agency, that the reader vacate the property within seven days.

He has also threatened to lock the tenant out of the property and chain up the gates. In addition, the landlord demands a written undertaking that the arrear rental will be paid.

What is clear is that the tenant is in breach of the lease agreement between himself and the landlord, says Schalk van der Merwe from Rawson Properties Helderberg.

“Depending on the exact terms of the agreement, the landlord would generally be able to put the tenant on terms to remedy the breach, failing which he can claim cancellation of the agreement and take steps to evict him, if the tenant does not vacate the premises on the termination date.”

Van der Merwe says these rights are confirmed in the Rental Housing Act.

“Section 4 sets out the landlord’s rights regarding prompt payment of rental and termination of lease ‘on grounds that do not constitute an unfair practice and are specified in the lease’.”

The Consumer Protection Act may also have an impact on the steps that the landlord must take, if a fixed lease was concluded on or after 1 April last year, says Van der Merwe.

“In that case, the landlord would only be entitled to cancel the lease after giving the reader 20 working days’ notice to remedy a material breach and he still fails to comply.”

With regard to the tenant’s rights, the Rental Housing Act confirms that a reader may not be evicted without a court order, says Lucille Geldenhuys from Lucille Geldenhuys Attorneys in Stellenbosch.

“Also, a landlord may not change the locks unless it is necessary due to wear and tear or other reasonable causes, and without having given reasonable notice to the tenant. Duplicate keys must be provided.”

Geldenhuys says this makes it clear that a landlord may not lock out a tenant – even one who is in arrears.

“Based on the unfair practice of the landlord, the tenant may approach the Rental Housing Tribunal to seek relief,” says Geldenhuys. “Alternatively, the tenant may seek legal assistance from an attorney.”

According to Geldenhuys, the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act may provide some guidance in this matter.

“The PIE Act, as it is commonly known, states that certain allegations must be made when requesting eviction and also prescribes the procedure to be followed when instituting eviction proceedings.”

The landlord has the remedy of obtaining an eviction order from the court, says Geldenhuys, but this process demands that proper notice be given of the proposed eviction.

“The relevant acts aim to prevent parties from taking the law into their own hands and acting unfairly, even in a situation where the tenant has breached the rental agreement.”

To ask a property related question, visit www.propertyposer.co.za.

He writes that he ended his homeowners’ association’s (HOA) mandate with the company, which was responsible for administration and accounting services.

The HOA had become dissatisfied with the service provider and, despite efforts by the company to improve, the situation became untenable. The relationship was terminated in order to appoint a new property manager.

Unfortunately, says the reader, the paperwork handed over to the new person was in an absolute mess. Nothing had been reconciled and all documents were simply placed in a box and delivered.

He says the new accountant is unable to reconcile the information provided in this fashion. Despite contacting the former service provider’s superiors, no effort has been made to assist.

The reader is concerned that his remedies against the errant company will be frustrated as its management is closely involved with the National Association of Managing Agents of South Africa (Namasa).

Namasa does make provision for a complaint system by way of a complaint referral, says Schalk van der Merwe from Rawson Properties Helderberg.

“It does, however, sound like the body has been approached for assistance but to no avail.”

As a Section 21 company, Van der Merwe says Namasa’s members would merely have to abide by its rules and, as such, it would probably “lack the teeth” to assist him.

“This could become a civil matter against the property management company as it’s a case of failure to perform under a contract.”

Van der Merwe says the HOA would have placed the property management company on terms to perform, failing which notice of cancellation of the agreement would have been given.

“If the contract makes provision for an arbitration clause, and assuming this clause is still valid despite the contract being cancelled, it could be used to settle the matter without taking it to civil court.”

This is why the terms and conditions contained in the agreement will be of utmost importance, says Lucille Geldenhuys from Lucille Geldenhuys Attorneys in Stellenbosch.

“Hopefully it made provision for what happens at the termination of the agreement, and how and when the management company is to return the information and paperwork belonging to the client.”

According to the client, the association had paid its fees up to December. “Yet, they are in no position to determine what their position is regarding the financial year-end. This may be an indication that their work was not up to date.”

The HOA may therefore need to appoint a more specialised person in order to reconcile all information and enable the new accountant to proceed, says Geldenhuys.

“The costs incurred could be recoverable by taking steps, whether civil or by way of arbitration, based on the breach of contract caused by the underperformance of the previous management company.”

To ask a property related question, visit www.propertyposer.co.za.

Related Link: Homeowners Association Woes

The situation before our panel this week involves two partners, one of whom lives on the property. The latter is also the one who makes the bond repayments.

Our reader is however concerned that the resident partner is “abusing the bond”, which places him as co-owner at risk.

The resident partner is not willing to sell and neither party is in a position to buy the other out.

It seems that no written agreement was drafted prior to applying for a mortgage bond and purchasing the property.

It is possibly too late to agree on terms, says Schalk van der Merwe from Rawson Properties Helderberg, as the relationship has soured to such an extent that dissolution of the partnership is being considered.

As is often the case, the lack of an agreement regulating aspects such as dispute resolution makes the situation problematic, says Van der Merwe. “Our reader should rightly be concerned about the co-owner’s alleged mismanagement of the bond.”

Although the extent of the abuse is not mentioned, Van der Merwe says one could infer that instalments are being made late or not at all. “Assuming that the bond is registered in both their names, each partner will be jointly and severally liable to the bank.”

Van der Merwe says this means that if the owner who is currently paying the instalments can no longer afford to, the bank as bondholder may claim any outstanding amount not covered by the sale of the property from one or both.

Simply put, a partnership is an association between two or more persons, up to a maximum of 20, who are contractually bound to one another to operate a joint, profit-generating business, says Lucille Geldenhuys from Lucille Geldenhuys Attorneys in Stellenbosch.

“Each partner contributes money, goods or services and accepts that any profits made and liabilities incurred will be shared between the partners on an agreed basis.”

A partnership does not have a separate and distinct juristic personality in South African law, says Geldenhuys.

“As a result, each partner is at risk in his or her personal capacity for the liabilities and any agreement regarding the apportionment of debts is not binding on third parties.”

Geldenhuys says, in the absence of a dispute resolution procedure, any of the partners may seek a court order dissolving the partnership and dividing the assets.

“This can be expensive as the partner seeking relief will have to bear the costs initially and hope to recover them from the other.”

Even if successful, the party taking action may not recover all or any of these costs and the dissolution may not have a favourable commercial result, says Geldenhuys.

To ask a property related question, visit www.propertyposer.co.za.

A reader granted her pensioner father the right to stay in her house, a property separate from her residence, but now wishes to sell it in order to use the proceeds elsewhere.

Her father is not willing to leave or seek alternative accommodation. The reader would like to know what her rights are in this regard.

The right of habitatio is an exclusive personal right, says Lucille Geldenhuys from Lucille Geldenhuys Attorneys in Stellenbosch.

“It lives and dies with our reader’s father and cannot be transferred. It can be abandoned by him but is otherwise inalienable.”

This type of personal servitude confers on its holder the right to dwell in another person’s house, together with his or her family, without detriment to the substance of the property, says Geldenhuys.

“It also carries with it the right to grant a lease or sublease to others.”

Geldenhuys says a second, lesser type of personal right is referred to as usus. “This entitles the user to occupy a house with his or her family and guests and also let out a part of the house.”

The user may not alienate the property or cede the right of use to another person, says Geldenhuys.

“It is always necessary in a situation like this to examine the facts of the matter properly to determine what type of personal servitude one is dealing with, as this will determine what the rights of the holder are.”

The reader may have permitted her father to stay in the house for an unspecified period without actually intending it to be indefinite, or without intending to formally grant him a real right of use or habitation, says Geldenhuys.

“One way of ascertaining whether the reader’s intention was to formally grant her father a right of usus or habitatio, is to determine whether the real right was registered against the title deed of the property, says Schalk van der Merwe from Rawson Properties Helderberg.

Once a right is granted, Van der Merwe says it cannot be revoked, except if any stipulated conditions have not been met or by mutual agreement.

“If it is absolutely necessary for the house in question to be sold, our reader would do well to approach her father and negotiate his leaving the house voluntarily.”

Van der Merwe suggests relocating him to a residence more suitable for him to see out his remaining years, thereby avoiding family quarrels and potential legal disputes.

“If agreement cannot be reached, the reader should cast her mind back to the exact terms mentioned at the time that the right was granted.”

This will allow her to properly assess the content and validity thereof, says Van der Merwe.

“Another aspect for the reader to explore with her attorney is whether she was, in fact, entitled to grant the right in question; it may never have been hers to grant.”

To ask a property related question visit www.propertyposer.co.za.

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He writes that the owner of the next-door property rents it out to eight students, who often hold loud parties until the early hours.

He has had meetings with the owner, who has undertaken to do something about the noise. However, instead of improving the situation, it has worsened.

The reader has contacted the police who have warned the tenants, but this remedy never lasts. He would like to know who can be held responsible for this intolerable situation and whether he could get the university involved.

If the landlord were intent on taking action, he could examine his lease agreement for a clause dealing with the reasonable use and enjoyment of the property, says Lucille Geldenhuys from Lucille Geldenhuys Attorneys in Stellenbosch.

“This could lead to the potential cancellation of the lease and ejectment of the tenants.”

As much as the owner or his tenants have the right to use and enjoyment of the property, Geldenhuys says it is a basic principle that your rights cannot infringe on those of your neighbours.

“Should a neighbour act in an offensive and unreasonable manner, he or she is said to cause a nuisance and legal steps can be taken against the offender.”

Geldenhuys says the measure applied to determine whether a particular use of property is unreasonable or not, is the standard of a reasonable person of sound tastes and habits.

“Where appropriate, you could obtain a court interdict, but this can be a costly, slow-moving and complicated affair.”

To qualify for this type of relief, the interference with one’s right of enjoyment of one’s own property must be substantial and continuous, says Geldenhuys.

According to Schalk van der Merwe from Rawson Properties Helderberg an interdict is a so-called civil remedy, where one private party acts against another. “A more cost-effective alternative would be to institute criminal action.”

Van der Merwe advises the reader to contact the relevant local authority to find out what municipal by-laws apply in his area.

“He should also determine whether the owner is contravening the zoning limitations by renting out his property as a student house.”

If so, Van der Merwe says the municipality must address the situation in accordance with the relevant municipal legislation.

“Alternatively, Section 384 of the Criminal Procedures Act pertains to instances of noise nuisance and binds individuals to keep the peace.”

The threat of criminal sanction may be more of a deterrent, says Van der Merwe, but only if charges were actually brought against the students, since warnings from the police have fallen on deaf ears.

“The tertiary institution on the other hand cannot be held accountable for the off-campus actions of its students. It is however not a bad option to explore as a reprimand from them may influence the students sufficiently to change their behaviour.”

To ask a property related question visit www.propertyposer.co.za.

Photographic Print of Noisy neighbours from Mary Evans

• This 10×8 Print features an image chosen by Mary Evans. Estimated image size 254x181mm.
• Printed on 254x203mm Fuji Crystal Archive paper for stable image permanence and brilliant colour reproduction with smooth tones, enhanced sharpness, and excellent definition
• Image Description: A man sits alone in his living room, shaking his fists at the ceiling above, where his neighbours are having a noisy party. His newspaper has been crumpled up and thrown to the floor in disgust.
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10×8 Print, Noisy neighbours. A man sits alone in his living room, shaking his fists at the ceiling above, where his neighbours are having a noisy party. His newspaper has been crumpled up and thrown to the floor in disgust. Chosen by Mary Evans. Printed on 254x203mm Fuji Crystal Archive paper for stable image permanence and brilliant colour reproduction with smooth tones, enhanced sharpness, and excellent definition.

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The first reader is having problems with water damage to built-in cupboards, caused by a leaking shower in the unit above.

The body corporate referred the issue to the person living in that unit, but he is merely a tenant who has undertaken to contact the owner.

In another matter, a reader complains about a badly neglected garden gate in one of the units in his complex.

The hinges are broken and the wood unvarnished and rotten. The owner refuses to take responsibility.

According to Schalk van der Merwe from Rawson Properties Helderberg, the maintenance in a sectional title scheme is typically the responsibility of the body corporate.

“The Sectional Titles Act makes the body corporate responsible for the maintenance of the common property, while owners are responsible for their sections.”

Van der Merwe says common property includes driveways, parking bays and garages, private and communal gardens, swimming pools, corridors, lifts and entrance foyers.

“With reference to the first reader’s problem, it is the duty of the owner of the upper unit to keep his section in a state of repair and fix the shower.”

Van der Merwe says the insurance of the building will sometimes cover resultant damage in these situations.

“However, if not, he may claim the cost of the repairs from the offending owner.”

The Act even allows the body corporate to perform maintenance to a section at the owner’s expense, should he or she fail to do so, says Van der Merwe.

“After giving 30 days’ notice, the body corporate may remedy the situation and recover the reasonable costs of repair from the owner.”

Lucille Geldenhuys from Lucille Geldenhuys Attorneys in Stellenbosch says some parts of the common property may be allocated as exclusive use areas to certain owners.

“An owner who enjoys such rights is obligated to keep that area clean and neat.”

Geldenhuys says exclusive use areas remain common property and belong to all owners in the scheme in undivided shares. “They are therefore the responsibility of the body corporate.”

However, says Geldenhuys, the Act makes it plain that the body corporate requires the owner to make additional contributions, in the form of a levy, for exclusive use.

“This is for maintenance, rates and taxes as well as insurance, unless the rules of the scheme state that the owner is responsible for these costs.”

In the second example, Geldenhuys says one must determine whether the rules make the owner responsible for repairs or whether he merely pays an additional levy.

“If he is responsible for the repairs and fails to fix the gate, the body corporate may do so and claim any reasonable costs. If he pays a levy, the body corporate must effect the repairs.”

To ask a property related question visit www.propertyposer.co.za.

About seven years ago a reader purchased a unit in a complex. She explains that her property lies adjacent to the boundary wall enclosing the entire development and a small river runs just beyond that.

For about five of the seven years she has lived there, the local municipality cleaned up the riverbanks and secured the area with sandbags whenever there were heavy rains.

When the owners of the properties adjacent to the boundary wall requested that the municipality do more extensive work to protect their properties, all aid suddenly stopped. The reason given was that the property over which the river runs belongs to a local church and is therefore not municipal property after all.

Upon investigation, the reader also discovered that the wall is not actually built as indicated on the approved building plan. In fact, whereas the wall is currently about 12 metres from her house, it should only be three metres away.

In effect, the reader’s back garden has suddenly shrunk by three quarters of its original size. However, when she purchased the property, she was clearly under the impression that the boundary wall was in the correct position.

To make matters worse, the wall is falling apart and the reader has therefore decided to erect a new one in the correct place. She wants to know who would be liable for future damages, should the river encroach further on her property.

The reader claims that the attorney who handled the transfer of her property knew it was not the size it appeared to be. He maintains the sale agreement indicated the size of the erf and that it was her responsibility to check these measurements.

This is a very unfortunate situation, which has been aggravated by the actions of various parties over the years, says Lucille Geldenhuys from Lucille Geldenhuys Attorneys in Stellenbosch.

“However, unless misrepresentation can be shown on the side of the transferring attorney, or the seller for that matter, his statement is correct. It is the duty of the purchaser to confirm the correct size of the property.”

Geldenhuys says an agreement of sale will often contain a clause pertaining to the fact that no representations were made by the seller regarding the size of the property or its boundaries.

Furthermore, says Schalk van der Merwe from Rawson Properties Helderberg, when the new wall is erected, any future damage to it will be for the reader’s account.

According to Van der Merwe, the only remedy she may have will lie with the owner or occupant of the adjacent land.

“It is his or her responsibility to keep the river free flowing and clear of any overgrowth that could cause it to block up, thereby increasing the potential for damages to the reader’s property.”

To ask a property related question visit www.propertyposer.co.za.

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Product Description   Case Logic CDW 264 – wallet for CD/DVD discs     Product Type   Wallet for CD/DVD discs     Localisation   English   List Price: £26.99 Price: £18.90 ]]> http://mycapetown.co.za/news/2012/02/boundaries-drive-owner-up-the-wall/feed/ 0 http://mycapetown.co.za/news/2012/02/suretyship-makes-cc-members-liable/ http://mycapetown.co.za/news/2012/02/suretyship-makes-cc-members-liable/#comments Wed, 01 Feb 2012 10:10:55 +0000 Alan http://mycapetown.co.za/news/?p=35428 This week the Property Poser panel deals with an issue where the defaulting tenant of a rental property is not a natural person but a close corporation (CC). The reader asks how a landlord can hold a tenant liable for a breach of contract when the tenant is a CC with only one member. In this instance, the contract has been cancelled and the tenant evicted. Unfortunately, no sureties were provided in terms of the rental agreement. As a result, the reader would like to know whether the member can be held liable, in his or her personal capacity, for any losses suffered as a result of the breach of contract. He also says the member confirmed on behalf of the CC that there were sufficient funds to pay the rental as agreed upon in the contract. Because this turned out to be untrue, he would like to know whether this amounts to fraud and if the member could be held liable on these grounds for any losses suffered. Furthermore, the reader wishes to know what the consequences may be for the tenant who, knowing that eviction is pending, disposes of the CC’s assets in an improper way in order to avoid the attachment and sale in execution of such assets. When dealing with a legal entity, one must bear in mind that the separation of the individuals from the entity in question – and thus the protection it affords them – is often the reason for such a choice, says Lucille Geldenhuys from Lucille Geldenhuys Attorneys in Stellenbosch. Geldenhuys says other parties transacting with such entities need to ensure that they are protected by requesting that the individuals provide a surety for the debts. “In the absence of such a surety, it may be difficult to hold the individuals liable.” If there were indeed fraudulent actions on the part of the members, Geldenhuys says this may be a reason to “pierce the so-called corporate veil”. “Having said this, the mere fact that the tenant does not ultimately have the funds to honour the rental contract does not in itself necessarily amount to fraud.” According to Schalk van der Merwe from Rawson Properties Helderberg, any number of things may happen during the course of a rental agreement that jeopardise the financial security of a tenant. “Due to unforeseen circumstances, a tenant may run into financial difficulty despite having been completely financially secure at the outset or at times in between.” Should the tenant fraudulently dispose of assets to prevent them from being attached, Van der Merwe says the creditor may approach the court for relief. “A legal remedy could perhaps prevent such actions or undo the disposals effected during this time.” Van der Merwe says a summons with a rent interdict preventing the removal of goods can, however, be useful in this regard. Send your property related questions to pose@propertyposer.co.za or visit www.propertyposer.co.za. Regulating Unfair Banking Practices in Europe: The Case of Personal Suretyships New, ship fast, delivered in 5-7 days in UK, No PO BOX. List Price: £100.00 Price: £70.00 ]]> http://mycapetown.co.za/news/2012/02/suretyship-makes-cc-members-liable/feed/ 0