How to evict your tenant lawfully.

Section 26(3) of the Constitution states that no one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions. Therefore, a court must proceed cautiously before it can grant an eviction order. In South Africa, the procedure for lawful evictions from residential property is regulated by the Prevention of Illegal Eviction and Unlawful Occupation of Land Act (the “PIE Act”). The PIE Act does neither apply to property leased for commercial, industrial or agricultural purposes, nor to holiday accommodation. The registered owner of a residential property, or a person in charge of such premises, has the right to initiate proceedings (as applicant) under the PIE Act. A person in charge means a person who has or, at the relevant time, had legal authority to give permission to a person to enter or reside upon the land in question.

Examples of such persons include a rental agent who acts on the lawful instructions of the owner or an executor of an estate that includes a residential property. To bring an application successfully, besides from having to prove that he or she is the owner or the person in charge of the property, the applicant must prove that the tenant (or respondent) is an unlawful occupier. The PIE Act defines an unlawful occupier as a person who occupies land without the express or tacit consent of the owner or person in charge, or without any other right in law to occupy such land. Examples of an unlawful occupier includes a defaulting tenant whose lease has been legally cancelled or any other person who does not have the express or tacit consent of the owner or person in charge of the premises to occupy the premises.

Once you, as a landlord, cancel a lease agreement, a tenant is no longer a tenant, but an unlawful occupier. The question now arises of when a lease agreement can be considered as legally cancelled. The first step is to have a look at the terms of the lease agreement between the landlord and the tenant. The lease agreement will determine when the lease period comes to an end and whether the landlord must notify the tenant (usually in writing) that he or she does not wish to continue with the lease agreement. The lease agreement will also make provision for instances when the landlord may terminate the lease agreement before the lease period expires, for example, due to breach of the lease agreement by the tenant. The lease agreement will determine the procedure to follow when a tenant is in breach of the lease agreement and the first step will usually be a written notice by the landlord to the tenant to remedy the breach within a specific period [of time], failing which, the landlord will have the right to, inter alia, cancel the lease agreement and take back possession of the leased premises.

It is further important to keep the provisions of the Consumer Protection Act in mind and for that reason a landlord should obtain legal advice from an attorney to ensure that the correct procedure is followed right from the beginning. In terms of section 4(6) of the PIE Act, if an unlawful occupier has occupied the land in question for less than six months at the time when the proceedings are initiated, a court may grant an order for eviction if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances, including the rights and needs of the elderly, children, disabled persons and households headed by women.

However, in terms of section 4(7), if an unlawful occupier has occupied the land in question for more than six months at the time when the proceedings are initiated, a court may grant an order for eviction if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances, including, except where the land is sold in a sale of execution pursuant to a mortgage, whether the land has been made available or can reasonably be made available by a municipality or other organ of state or another land owner for the relocation of the unlawful occupier, and including the rights and needs of the elderly, children, disabled persons and households headed by women. Therefore, landlords who allow six months to pass before they start with the eviction process will face more obstacles to obtain an eviction order, because the court is obliged to investigate whether the municipality should provide the occupiers with alternative accommodation. It is therefore important to immediately consult an attorney when your tenant is in breach of his or her residential lease agreement and to follow the proper legal procedures to prevent a long and expensive eviction procedure.

danny

 

 

 

 

 

 

 

 

 

 

DANIËL VAN ZYL

ATTORNEY & CONVEYANCER
VAN ZYL KRUGER INC

DEPOSITS AND PENALTIES IN SALE AGREEMENTS

Quite often in practice we come across offers to purchase or sale agreements of immovable property containing a clause which makes provision for non-refundable deposits. The same sale agreement usually contains a breach clause which stipulates that, in the event of a breach of contract on the part of the purchaser, which breach is not rectified within a specific period of time, the seller can cancel such agreement and retain all amounts paid by the purchaser in respect of the purchase price, including the deposit, as a penalty for damages suffered by the seller.

It is important to note that, in terms of the Conventional Penalties Act (Act 15 of 1962) (the “Act”), any penalty for damages contained in, for example, a sale agreement for immovable property, shall be subject to the provisions of the Act. It specifically states in section 3 that:

“If upon the hearing of a claim for a penalty, it appears to a court that such penalty is out of proportion to the prejudice suffered by the creditor by reason of the act or omission in respect of which the penalty was stipulated, the court may reduce the penalty to such extent as it may consider equitable under the circumstances: Provided that in determining the extent of such prejudice the court shall take into consideration not only the creditor’s proprietary interest, but any other rightful interest that may be effected by the act or omission in question.”

Section 4 of the Act further covers a forfeiture stipulation resulting from the withdrawal from a sale agreement and subsequently also applies to the retention of certain amounts already paid by a purchaser as liquidated damages. The courts will have the discretion to reduce the penalty to such extent as it may consider equitable under the circumstances. Therefore, the penalty can still be higher than the actual loss or damages suffered. The onus rests on the defaulting purchaser to prove that the penalty is unreasonable.

Estate agents should be careful when concluding sale agreements for immovable property and should never create an expectation with a seller that he will be entitled to the full deposit or monies paid to the conveyancers in respect of the purchase price if a purchaser breaches the agreement which leads to the cancellation thereof.

It cannot be expected of conveyancers to simply pay the monies held in their trust account to either party when such a cancellation occurs. In the absence of an agreement between the seller and the purchaser, our courts will have to make an order as to penalties.

Most sale agreements will also determine when the estate agent’s commission is payable and such commission will usually be payable even if the agreement is cancelled. The estate agent will be entitled to such commission even if the agent resells the property from the same seller to a different purchaser after the cancellation. However, a conveyancer cannot assume that the agreement has been validly cancelled and that the purchaser is at fault.

Whatever the case may be, it is advised that conveyancers hold any monies paid by purchasers in their trust accounts until such stage as the parties have reached an agreement or a court order is obtained. The penalty must be agreed upon between the parties in writing, or the court must be sought to quantify the amount payable as a penalty. It is best to provide in a sale agreement that, if the purchaser breaches the agreement and the seller subsequently cancels the agreement, the conveyancers are authorised to hold the deposit in trust pending determination of the seller’s damages. This will afford the purchaser to approach a competent court should he feel that the penalty payable is disproportionate to the damages suffered by the seller.

danny

 

 

 

 

 

 

 

 

 

 

DANIËL VAN ZYL

ATTORNEY & CONVEYANCER
VAN ZYL KRUGER INC

Contents of a sale agreement of immovable property

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A lot has been written about the formalities of sale agreements of immovable property. The Alienation of Land Act determines that no alienation of land shall be of any force or effect unless it is contained in a deed of alienation signed by the parties thereto or by their agents acting on their written authority. Agreements of sale of immovable property are therefore one of the few contracts that must be recorded in writing.

The essentialia or material terms of such agreements are the following: a description of the seller and the purchaser, a description of the property, and the determination of the purchase price. Although the essentialia will constitute a valid sale agreement, it won’t be sufficient to regulate the legal consequences of a sale of immovable property. The Alienation of Land Act further makes provision for the contents of contract for a sale agreement of immovable property, which must be incorporated in the deed of sale.

The agreement must contain the names of the purchaser and the seller (or owner) as well as their residential or business addresses. A full description and extent of the property which is sold should be included in the agreement. The purchase price should be determined, the method of payment, as well as the date on which the purchase price becomes payable by the purchaser. This will constitute the essentialia of the agreement.

If the property is encumbered by a mortgage bond, the name and address of the person, or his representative or, in the case of a participation bond, the name and address of the nominee company, or its representative, in favour of whom the mortgage bond over the land is registered at the time the contract is concluded, should be stipulated in the agreement.

It is important to note that transfer duty is payable and to determine which party is responsible for the payment thereof (usually the purchaser). It might further be wise to determine the amount of transfer duty payable in the agreement to avoid any unnecessary disputes between the parties after signature of the agreement.

The dates on which and the conditions on which the purchaser shall be entitled to take possession of the property must be included in the agreement. It is also required to state the date on which the risk, profit and loss of the property shall pass to the purchaser. The date of transfer should also be included in the agreement.

Although not prescribed by the Alienation of Land Act, other important clauses to include in a sale agreement to regulate the sale of immovable property, are the following:

•    Defects and Voetstoots clauses;
•    Any suspensive conditions;
•    Occupational interest, if applicable;
•    Estate agents’ commission;
•    Parties’ Domicilia Citandi Et Executandi;
•    Breach of contract and Jurisdiction clauses;
•    Compliance certificates; and
•    Fixtures and fittings.

Most estate agencies have standard drafted sale agreements in place. However, it is of the utmost importance that the deed of sale is a custom-made agreement to suit the needs and requirements of both the seller and the purchaser. It is further important that both parties are aware of and understand the contents of the agreement, to avoid unnecessary disputes. Always consult an attorney to review your sale agreement should you be uncertain of any of the contents of the agreement.

DANIËL VAN ZYL
ATTORNEY & CONVEYANCER AT VAN ZYL KRUGER INC
www.vzk.co.za

CHOOSING YOUR CONVEYANCER

Property 24 Exclusive

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The law is trite that the Seller has the absolute prerogative to appoint the conveyancer when he or she sells an immovable property, unless the parties agree otherwise in the written agreement of sale.

The questions that beg, are:

  • How important is this prerogative?
  • Is one conveyancer not just as good as another?
  • Since it is the Purchaser that normally pays the conveyancing fee, should the Seller not simply relinquish his or her prerogative and allow the Purchaser to nominate the Conveyancer? Or;
  • Would the estate agent handling the sale of the property not know which conveyancing firm will be the best?

These questions can only be answered once one has established who and what a conveyancer really is and what his or her role in the transfer process entails and the importance thereof to the Seller.

A conveyancer is an attorney, who is further qualified and enrolled on application in the High Court and subsequent to such enrolment may then commence to practice as conveyancer relating to matters pertaining to real estate and the rights thereto.

Only a conveyancer may prepare and sign or execute certain deeds and documents to be registered or lodged in the deeds registry.

Only a conveyancer may be given a power of attorney by the Seller of immovable property to execute deeds before the registrar on the owner’s behalf and is therefore representing the Seller and not the Purchaser in that function.

The Conveyancer who signs the prescribed certificate on a deed or document, accepts by virtue of such signature the responsibility, to the full extent as prescribed by regulations of the Deeds Registration Act, for the accuracy of those facts mentioned in such deed or document or which are relevant in connection with the registration or filing thereof.

It is obvious that the conveyancer represents the best interests of the Seller and should therefore be appointed by the Seller. It is imperative that this special relationship between the Seller and the conveyancer should be acknowledged when choosing a conveyancer, the Sellers choice should not be diluted by other relationships or interests which may not necessarily always be in the best interest of the Seller.

The conveyancing paralegal or assistant who will on a regular basis be in contact with the Seller, supports the conveyancer with the conveyancing process. She occupies a specialized position and works independently, within the framework of the provisions of the Deeds Registries Act and conveyancing practice, using her own initiative and skills, especially where she has the required experience. She always works under the direct supervision of the conveyancer who has the required legal knowledge and whom guides her where necessary. She is the right arm of the conveyancer, assisting and enabling him to concentrate on specialized matters and consultations and is normally the default link between the Seller and the Purchaser as well the liaison between bond and bond cancellation attorneys and the various local and other authorities or institutions that have input in the process. She is the conductor, directing all the relevant parties in the symphony of the successful registration procedure, while continuously projecting an efficient and professional image on behalf of her firm.

Should the Seller not be acquainted with a conveyancer it is advisable to enquire from friends or colleagues, who recently sold a property to suggest a firm where both the Conveyancer and the Conveyancing paralegal provided exceptional service and support throughout the entire process and continually addressed any problems that might have arisen, professionally and competently, as well as kept within timelines while keeping the parties fully informed of how the process was progressing.

Most of us have heard crude remarks such as, “what do you call a thousand lawyers at the bottom of the ocean? A good start!” Hollywood contributed vastly to this general perception of lawyers, as the professional with the skill and training required to shield his or her client against the consequences of that client’s wrong choices and to enable the client to avoid reaping what the client has sown, a victor for the guilty, a crusader for the “wrongfully accused” always playing to the pavilion of potential clients.

Hollywood has not yet discovered the conveyancer, and therefore conveyancers are slightly shielded from the brunt of the general public’s perceptions, of a lawyer as a shark in an expensive suite, but in truth, the majority of claims against lawyers are resultant from and relating to the transfer of immovable property.

Conveyancers, however, navigate an ocean where the sharks walk on two legs and the bait is often ensnared as result of their own decisions, driven by fear and greed, or perhaps the need to satisfy the requirements of those who ensure that they receive a steady number of instructions and sometimes by shear ignorance or lack of experience. The conveyancer is required to charter a course based on the balance between the client’s right to drive a hard bargain and the morals of the community, that holds that the exploitation of another person’s financial emergency is akin to undue influence and that would not fear to render a contract void due to the absence of the required consent between parties. A balance between right and wrong, between “can” and “may not”.

The Seller should strive to appoint a conveyancer that, as a professional lawyer, practices within the constraints and boundaries of the law, governed by the rules of professional conduct and practice as prescribed by the Law Society and who is not subject to influences that do not have the client’s best interests at heart.

A conveyancer should be able to honestly counsel the Seller upon request on the legal consequences of any proposed course of conduct in order to make a good faith effort to determine the application and scope of the applicable legislation and common law. A conveyancer represents the Seller and may only take such action on behalf of the Seller as he or she is impliedly authorised to, always abiding by the client’s decisions concerning the objectives of the representation and the means by which they are to be pursued.

The law is an ever-developing and growing creature, fed and fuelled by the everlasting quest to ascertain equity between men and goodwill to all. She determines the “can” and the “cant’s” and those who disrespect her does so at their own peril.

From the above it should be obvious that having the prerogative to appoint the conveyancer is an important arrow in the Seller’s quiver and should be exercised with due regard to the above. It will be at your own peril to relinquish such benefit.

Thus, appoint a conveyancer, that will not only deliver a good and speedy service, but in particular will be hell bent on protecting your rights as the Seller.  Your property is worth it!

Eberhard Kruger
Director
Van Zyl Kruger Attorneys
www.vzk.co.za

Advice for sellers: how to choose your conveyancing attorney

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The law is trite that the seller has the absolute prerogative to appoint the conveyancer when he or she sells an immovable property, unless the parties agree otherwise in the written agreement of sale.

Only a conveyancer may be given a power of attorney by the seller of immovable property to execute deeds before the registrar on the owner’s behalf, and is therefore representing the seller and not the purchaser in that function.
This is according to Eberhard Kruger, Director at Van Zyl Kruger Attorneys, who says the questions this begs are:

– How important is this prerogative?

– Is one conveyancer not just as good as another?

– Since it is the purchaser that normally pays the conveyancing fee, should the seller not simply relinquish his or her prerogative and allow the purchaser to nominate the conveyancer?

– Would the estate agent handling the sale of the property not know which conveyancing firm will be the best?

“These questions can only be answered once one has established who and what a conveyancer really is, and what his or her role in the transfer process entails and the importance thereof to the seller,” says Kruger.

He says a conveyancer is an attorney who is further qualified and enrolled on application in the High Court, and subsequent to such enrolment may then commence to practise as a conveyancer relating to matters pertaining to real estate and the rights thereto.

Only a conveyancer may prepare and sign or execute certain deeds and documents to be registered or lodged in the deeds registry.

Only a conveyancer may be given a power of attorney by the seller of immovable property to execute deeds before the registrar on the owner’s behalf, and is therefore representing the seller and not the purchaser in that function.

The conveyancer who signs the prescribed certificate on a deed or document accepts, by virtue of such signature, the responsibility to the full extent as prescribed by regulations of the Deeds Registration Act for the accuracy of those facts mentioned in such deed or document, or which are relevant in connection with the registration or filing thereof.

“It is obvious that the conveyancer represents the best interests of the seller, and should therefore be appointed by the seller,” says Kruger.

The conveyancer who signs the prescribed certificate on a deed or document accepts, by virtue of such signature, the responsibility to the full extent as prescribed by regulations of the Deeds Registration Act.
“It is imperative that this special relationship between the seller and the conveyancer should be acknowledged when choosing a conveyancer – the seller’s choice should not be diluted by other relationships or interests which may not necessarily always be in the best interest of the seller.”

The conveyancing paralegal or assistant, who will on a regular basis be in contact with the seller, supports the conveyancer with the conveyancing process. He or she occupies a specialised position and works independently within the framework of the provisions of the Deeds Registries Act and conveyancing practice, using their own initiative and skills, especially where they have the required experience.

They always work under the direct supervision of the conveyancer, who has the required legal knowledge, and whom guides them where necessary. They are the right arm of the conveyancer, assisting and enabling him or her to concentrate on specialised matters and consultations, and is normally the default link between the seller and the purchaser, as well the liaison between bond and bond cancellation attorneys and the various local and other authorities or institutions that have input in the process.

“They are the conductor, directing all the relevant parties in the symphony of the successful registration procedure, while continuously projecting an efficient and professional image on behalf of her firm,” says Kruger.

Should the seller not be acquainted with a conveyancer, he says it is advisable to enquire from friends or colleagues who recently sold a property to suggest a firm where both the conveyancer and the conveyancing paralegal provided exceptional service and support throughout the entire process, and continually addressed any problems that might have arisen, professionally and competently, as well as kept within timelines, while keeping the parties fully informed of how the process was progressing.

“Most of us have heard crude remarks such as, ‘What do you call a thousand lawyers at the bottom of the ocean? A good start!’,” says Kruger.

“Hollywood contributed vastly to this general perception of lawyers, as the professional with the skill and training required to shield his or her client against the consequences of that client’s wrong choices and to enable the client to avoid reaping what the client has sown, a victor for the guilty, a crusader for the ‘wrongfully accused’ always playing to the pavilion of potential clients.”

“A conveyancer should be able to honestly counsel the seller upon request on the legal consequences of any proposed course of conduct in order to make a good faith effort to determine the application and scope of the applicable legislation and common law,” says Kruger.
Kruger says Hollywood has not yet discovered the conveyancer, and therefore conveyancers are slightly shielded from the brunt of the general public’s perceptions, of a lawyer as a shark in an expensive suite, but in truth, the majority of claims against lawyers are resultant from and relating to the transfer of immovable property.

“Conveyancers, however, navigate an ocean where the sharks walk on two legs and the bait is often ensnared as result of their own decisions, driven by fear and greed, or perhaps the need to satisfy the requirements of those who ensure that they receive a steady number of instructions and sometimes by shear ignorance or lack of experience,” says Kruger.

“The conveyancer is required to charter a course based on the balance between the client’s right to drive a hard bargain and the morals of the community, that holds that the exploitation of another person’s financial emergency is akin to undue influence, and would not fear to render a contract void due to the absence of the required consent between parties. A balance between right and wrong, between ‘can’ and ‘may not’.”

Kruger says the seller should strive to appoint a conveyancer that, as a professional lawyer, practices within the constraints and boundaries of the law, governed by the rules of professional conduct and practice as prescribed by the Law Society, and who is not subject to influences that do not have the client’s best interests at heart.

“A conveyancer should be able to honestly counsel the seller upon request on the legal consequences of any proposed course of conduct in order to make a good faith effort to determine the application and scope of the applicable legislation and common law,” he says.

A conveyancer represents the seller, and may only take such action on behalf of the seller as he or she is impliedly authorised to, always abiding by the client’s decisions concerning the objectives of the representation and the means by which they are to be pursued.

Kruger says the law is an ever-developing and growing creature, fed and fuelled by the everlasting quest to ascertain equity between men and goodwill to all. The law determines the “can” and the “cannot”, and those who disrespect it does so at their own peril.

“From the above it should be obvious that having the prerogative to appoint the conveyancer is an important arrow in the seller’s quiver, and should be exercised with due regard to the above. It will be at your own peril to relinquish such benefit,” says Kruger.

“Thus, appoint a conveyancer that will not only deliver a good and speedy service, but in particular will be hell-bent on protecting your rights as the seller. Your property is worth it.”

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