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landlord and occupier rights Archives | Page 4 of 10 | Eviction Lawyers South Africa

Dec 20
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New laws for complexes and sectional titles in South Africa – what it means for residents

By | Sectional title schemes

Reprinted from Business Tech – 2022-12-10

Legal firm Cliffe Dekker Hofmeyr has broken down what the new Sectional Title Amendment Bill means for South Africans who live in complexes.

The new bill was just passed by the National Council of Provinces and sent to President Cyril Ramaphosa to be signed into law on 27 October 2022.

According to Cliffe Dekker Hofmeyr, the bill effectively seeks to ‘fill’ the gaps which the Sectional Titles Act currently has, especially to make it more comprehensive without the need to refer back to other pieces of legislation such as the Deeds Registries Act.

The new bill will be called the Sectional Titles Amendment Act of 2020, and will come into operation on the date of publication in the Government Gazette, said Cliffe Dekker Hofmeyr.

When the act is passed into law, regulations governing scheme development, including extensions and common property, will also be in place. However, the amendments are primarily directed at complex managers and Home Owners’ Associations across the nation.

Sectional titles are governed by three main laws in South Africa – the Sectional Titles Act (95 of 1968) which regulates the ownership, letting and use of sectional titles schemes in the country, the Sectional Titles Schemes Management Act (8 of 2011), which regulates the functions and powers of body corporates, and the Community Schemes Ombud Services Act (9 of 2011), which sets up and handles dispute resolutions.

The Sectional Title Amendment Bill is primarily in effect to “fill the gaps” left open by these laws.

For residents of sectional title schemes, the main impact will be how complex managers, body corporates and HOAs interact with the sectional titles. More direct impacts of the law come in when residents are lessees or when owners need to work with the body corporates in determining the use of the common property.

Notably:

  • It will now be a requirement for developers to have a meeting with every lessee of a building in instances where part of such building is to be wholly or partially let for residential purposes, to answer questions put to the developer by the agents of the lessees;
  • A certificate must now be issued by an architect or a land surveyor to comply with section 26(2) of the Spatial Planning and Land Use Management Act – ie, where land is only allowed to be used for the permitted purposes;
  • Amendments can now be made to sectional plans in respect of exclusive use areas; and
  • A developer to submit a plan for subdivision or consolidation to the surveyor-general for approval to subdivide, consolidate and to extend a section.

CDH outlined what Sectional Title Amendment Bill aims to do. It primarily seeks to amend the Sectional Titles Act of 95 1986 (Sectional Titles Act) so as to:

  • Change certain definitions;
  • Provide for the developer to answer questions put to it by the agents of lessees;
  • Provide that a certificate issued by an architect or a land surveyor must also comply with section 26(2) of the Spatial Planning and Land Use Management Act 16 of 2013;
  • Further, provide for the amendment of sectional plans in respect of exclusive use areas;
  • Further, provide for the amendment and cancellation of a sectional plan upon an order of the court;
  • To provide for the noting of a title deed in respect of the lapsing of a reservation in terms of section 25;
  • Provide for a lease of part of the common property to be subjected to the rights of the holders of real rights, and it shall be necessary to obtain the consent of the holders of registered real rights;
  • Amend the provisions relating to the alienation of common property;
  • Further provide for the cancellation of a mortgaged section and mortgaged exclusive use area;
  • Also provide for a developer to submit a plan for subdivision or consolidation to the Surveyor-General for approval to subdivide, consolidate or extend a section prior to the establishment of a corporate body;
  • Extend the registration of subdivision of a section, the consolidation of sections, and the extension of sections to a developer;
  • Provide for the filing of replacement documentation in respect of lost or destroyed documentation;
  • Amend the provisions relating to the extension of a scheme and include reference to exclusive use areas where reference was previously omitted;
  • Amend the provisions relating to participation quotas of sections and cross-reference the Sectional Titles Act with the newer Sectional Titles Schemes Management Act 8 of 2011, and regulate the membership of the sectional titles regulations board;

The new bill was originally introduced by the Minister of Agriculture, Land Reform & Rural Development to the National Assembly on 2 November 2020.

It was then passed by the National Assembly and transmitted to the National Council Of Provinces for concurrence on 16 November 2021.

For more information

If you’d like to know more about the Sectional Titles Act or the Sectional Title Amendment Bill, or if you have any questions about your scheme, give Simon a call on 086 099 5146, or email simon@sdlaw.co.za. SD Law & Associates are experts in property management and sectional title law and will resolve your query promptly and efficiently.

Further reading:

 

Sep 26
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Rights and Wrongs

Top court finds eviction of woman who has been in house since 1947 is lawful

By | Appeal of an eviction order, ESTA, Eviction news, PIE

Reprinted from Times Live, by Ernest Mabuza – 2022-09-21

The Constitutional Court has ruled the eviction of an 85-year-old woman from a property given to her by a Somerset West businessman is not unlawful.

Clara Phillips has been living in the house since she was 11. She started living on the property in 1947, when the property formed part of a larger farm. She lives in the house with her disabled son.

The property is situated about 500m from Willem Grobler’s home in Somerset West. Grobler bought the property at a public auction because he wanted his elderly parents to reside in it.

The property was registered in Grobler’s name in September 2008 but his wishes to accommodate his parents in it have not yet been realised.

After purchasing the house, Grobler met Phillips on three occasions and told her he required her to vacate the property.

Grobler was prepared to pay towards her relocation or, at his cost, provide alternative accommodation for her. Phillips did not accept Grobler’s proposals, stating she was not prepared to move from the property.

When the eviction proceedings were before the magistrate’s court, Phillips alleged the previous owner had given her a lifelong right of occupation.

The magistrate’s court said the alleged lifelong right of occupation was invalid and unenforceable against Grobler as it was not registered against the title deed. The court granted an order of eviction against Phillips.

Phillips appealed to the full court of the Western Cape High Court.

In that court, not only did Phillips invoke the provisions of the Prevention of Illegal Eviction and Unlawful Occupation of Land Act but also relied on a new and alternative ground of appeal, namely that she was an occupier in terms of the provisions of the Extension of Security of Tenure Act.

The high court upheld her appeal and this led to Grobler appealing to the Supreme Court of Appeal (SCA).

In its judgment last year, the SCA rejected the defence raised by Phillips that she had a right of lifelong habitation and was a lawful occupier. However, it said it was not just and equitable to order an eviction in the matter and dismissed Grobler’s appeal.

In its judgment on Tuesday, the Constitutional Court said an unlawful occupier such as Phillips does not have a right to refuse to be evicted on the basis that she prefers or wishes to remain on the property she is occupying unlawfully.

“The Constitution does not give Mrs Phillips the right to choose exactly where in Somerset West she wants to live,” justice Zukisa Tshiqi wrote in a unanimous judgment.

Tshiqi said the fact that Grobler had repeatedly made offers of alternative accommodation to Phillips should not be taken as creating any obligation to offer alternative accommodation.

Tshiqi said it was an important consideration that an eviction order in these circumstances will not render Phillips homeless.

“The offer advanced by Mr Grobler stands. If it is made an order of court, it will essentially mean Mrs Phillips will only be required to relocate from one home to another in the same immediate community within Somerset West.”

In the order, the court said Grobler is directed to purchase a two-bedroom home in good condition, and it must be within a radius of 5km from where Phillips currently resides. The order said Phillips will have a right to live in that house for the rest of her life.

The court said if Phillips and her son do not take occupation of the dwelling within six months from the date of registration of the dwelling in the name of Grobler, they are directed to vacate the premises. Failing this, the sheriff of the court is directed to evict them from the premises.

For further information

Simon Dippenaar & Associates, Inc. is a Cape Town law firm of specialist eviction lawyers, now operating in Johannesburg and Durban, helping both landlords and tenants with the eviction process. Contact one of our eviction attorneys on 086 099 5146 or simon@sdlaw.co.za if you have questions about your right of occupation or if you need advice on the eviction process.

Further reading:

Sep 05
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From Homeowner to Landlord: How to Make it Work

By | Lease Agreement, Rental Housing Act, Tenants

Reprinted from Tech4Law – 2022-07-04

It’s all about the side hustle in 2022. With the economic effects of the Covid-19 pandemic still being felt, many South Africans are hustling to bring in extra cash to help pay the bills.

A smart way to earn a bit more, especially if you already have a primary job, is to generate a passive income, which is a revenue stream that comes from somewhere other than an employer and requires minimal effort to earn. You can do this by becoming a landlord, either by investing in a rental property, or by moving on from your smaller ‘starter’ home and converting it into a rental.

“This is a long-term investment strategy that can provide a steady income, as long as you keep in mind that ‘passive’ does not entirely describe what it is to be a landlord. It does require some work. If you’ve ever said “oh no, the geyser has burst, let me call my landlord”, you know what you’re in for,” advises Andrea Tucker, Director of online bond originator MortgageMe.

Here are some tips from the experts at MortgageMe to help first-time landlords navigate the property rental business.

  • Understand the legalities

Familiarise yourself with The Rental Housing and Amendment Acts and the CPA (Consumer Protection Act). You will need to have a written lease agreement that is understood by all concerned parties. “The lease needs to contain all the information pertaining to the tenancy, such as the tenant’s start and end date, the rental amount, deposit details, the use of the property and conditions around how disputes will be addressed,” says Tucker. You will need to provide your tenant with a copy of the signed agreement, and also issue the tenant with a receipt for every payment received. Also inform your insurer that you’re going to be renting your property to ensure that you’re covered for every possible eventuality in the future.

  • Factor in all the costs

Do some research on what you can charge for rent on the property and then take into account what your expenses will be to calculate your profit. Remember to include costs like bond payments, insurance, levies, maintenance and cleaning into your calculations.

Make sure you are in a relatively secure position financially as unforeseen circumstances can deal a blow to your finances. Tucker’s advice is to have money kept aside in a contingency fund for unanticipated expenses such as payment defaults or issues not covered by home insurance. If you have an access bond on the property, you can use this to cover any larger than anticipated expenses that need to be covered in an emergency.

  • Screen potential tenants

It is vital to do a proper credit and background check on a new tenant. If you’re managing the rental yourself, ask the prospective tenant for a certified copy of their ID, three months of bank statements, proof of income and references from previous landlords. You can also approach an online data aggregator to do these credit and background checks, after you’ve received consent from your prospective tenant.

  • Consider hiring a rental agent or property manager

If you want your passive income to be a bit less active, hire someone to do the hands-on management of your rental. A professional will know all the legalities involved in renting a property, how to screen tenants, deal with disputes and collect payments. This comes at a cost, so its completely up to you about how much time you think you’d need to set aside to manage a property.

  • Create a network of contractors

You may be handy around the home, but repairs on your rental may take up more time than you’re willing to give, and some repairs are likely to fall out of your area of expertise. Tucker advises creating a list of trusted maintenance people, such as electricians, plumbers and painters, who you can call on to assist in times of need. Weekends are for hobbies, not sorting out home maintenance right?

  • Understand your responsibilities

Your first responsibility is to ensure that your property is fit for rental purposes and well maintained. You also need to be available to your tenants whenever issues regarding the rental arise. If you receive an emergency request for a repair, you are obligated to attend to the issue in a reasonable amount of time.

“Keep the lines of communication open to ensure a happy tenant. Let them know about any scheduled maintenance in advance and be on call for any concerns they may have, however small. This will ensure a good relationship between you and your tenant, which will go a long way to ensuring your job as a landlord is trouble-free,” counsels Tucker.

Most importantly, make sure you keep on top of maintenance. Don’t let months go by without popping into the property to ensure that your tenant is keeping it clean – not everyone is as tidy as you. This will make a future transition to a new tenant less onerous on you, and less costly in the long run.

We can help

Simon Dippenaar & Associates, Inc. is a Cape Town law firm of specialist eviction lawyers, now operating in Johannesburg and Durban. If you are considering becoming a landlord, or if you need advice on any aspect of a lease or landlord-tenant relations, contact one of our attorneys on 086 099 5146 or simon@sdlaw.co.za.