Rental Agreements and Evictions
One of the biggest problems individuals face, is that of tenants who do not pay the rent and the subsequent eviction of the tenants. Our firm has a proven track record of successful eviction procedures.
We can assist you with –
- drafting professional rental agreements
- cost effective and efficient eviction orders
- rental interdicts
- collection of levies and rent
To evict your residential tenant, you have to prove a valid reason to do so, and thereafter you need to follow the process laid down in the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (the PIE act).
The first step under normal circumstances is to cancel the lease agreement with the tenant, even where the contract was made orally, and inform the tenant of the cancellation and the reasons therefore. Thereafter the tenant would be occupying the premises illegally and will fall under the definition of an unlawful occupier. The second step is to bring an application for the eviction of the tenant to the Magistrate’s Court having jurisdiction over the property. You will need to prove that the contract was properly terminated and that you had valid reasons for doing so, i.e. outstanding rental, damages to the rental premises or property or that the lease has run its course. You may not evict a tenant just because you do not like him.
The PIE Act lays down strict steps that an owner/landlord must follow to evict an unlawful occupant, i.e. 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.
The landlord must follow the steps laid down by the PIE Act and not take the law into his own hands by, e.g., changing locks, disconnecting electricity and water supplies, or evicting a tenant by intimidation or force. These are examples of “spoliation”, which entitles the tenant to approach the court for the mandament van spolie, thereby giving him the leased premises back and to order the landlord to pay the tenant’s legal fees.
Conveyancing & living your dream
For most individuals, the sale or purchase of a home is one of the major events in their lives, and probably the largest investment they will make.
Experience has shown that they want to be assured that their transfer is in competent hands and that they will be kept updated of developments, especially any problem that may arise.
At DU TOIT DROTSKY we follow a hands-on approach to conveyancing – by doing everything possible to ensure each transfer is effected with minimum complications in the shortest time possible. This is achieved through regular interaction with the estate agent, seller and buyer, which include –
- immediately contacting the estate agent and the giving of an undertaking to pay the agency’s commission
- immediately contacting the seller and the buyer and advising on the persons dealing with the transfer
- explaining the registration process to all parties concerned
- reporting regularly to all parties on the progress of the transfer
- visiting buyers and sellers at their homes or offices when signing transfer and bond documents where possible
- personally inspecting properties where possible to ascertain the extent of defects complained of by any buyer.
what does the seller pay…
· Agents Commission (the amount agreed to with the estate agent as the agent’s fee)
· Cancellation Fee (for an existing bond against the property)
· Rates payable (to the local Council to obtain the clearance certificate)
· Bond settlement (the amount guaranteed to your Bank to cancel your existing bond)
what does the buyer pay…
- Transfer duty (tax prescribed by the Government on all normal residential property sales)
- Transfer and bond fee (fees for registering each transaction respectively, in accordance with a prescribed sliding scale)
- Deeds Office Fees (payable to the local Deeds Office for registering the transfer and bond)
- Sundries (a fee for telephone calls and sundry expenses)
- Value Added Tax
- Stamp Duty (payable on the bond amount)
Breaking down the steps
1. Instruction. A conveyancer receives the instruction to transfer the property.
2. Communication. The conveyancer communicates with the various role-players involved in the transfer process, such as the seller, purchaser, transfer and bond attorneys, municipality, bank, South African Revenue Service (SARS).
3. Collection. Certain information and documents are required, such as the agreement of sale, deeds office search, existing deed, bond cancellation figures from the bank and so on. The conveyancer should continuously report to the various role-players about the progress being made.
4. Drafting and signing. As soon as all the information and documents have been collected, the conveyancer will draft the transfer documents and request the seller and purchaser to sign them. These transfer documents will include a power of attorney and various affidavits.
5. Finances. Financial arrangements include requesting an advance payment for the conveyancer’s interim account for certain expenses, requesting the bank guarantee, collecting the purchase price or deposit and so on.
6. Transfer duty. Obtaining a transfer duty receipt from SARS, confirming that the tax relating to the transfer of the property has been paid by the purchaser.
7. Clearance certificate. Obtaining a clearance certificate from the municipality, confirming that all amounts in respect of property have been paid for the last two years.
8. Prep. The conveyancer prepares for lodgement (submission) of the deed of transfer and other documents necessary for registration at the deeds office.
9. Registration. Once the deed of transfer and other documents have been lodged it, takes the deeds office about 7 – 10 working days to examine these documents. If the deeds office is satisfied that the requirement for the transfer of property has been met, the deed of property is registered. The conveyancer will notify the various role-players of the registration.
10. Accounts. Once registered, the conveyancer makes the necessary calculations and payments relating to the sale, for example, the estate agent’s commission, purchase price and so on. The conveyancer’s final account is also drawn up and sent to the purchaser and the seller for payment.
It is important to have a will
Nobody wants to think about dying, and therefore we often put off making a will. However, all of us accumulate assets during our lifetime, and even if these assets are of no great monetary value, they may be of sentimental value to our families and us. By drawing up a will (a document wherein you set out how your possessions are to be distributed after your death), you ensure that your family will be looked after when you are no longer there for them, especially if you have minor children, and that your assets are properly protected in accordance with your wishes. If you die intestate, without a valid will, your assets will be distributed according to the law of intestate successions, which involves a set formula that may be far removed from your intentions. It is therefore imperative that a will be drawn up to avoid lengthy delays in winding up your affairs.
Any person over the age of 16 years, who is of a sound mind, may make a will. You may draw up your own will, but, since strict formalities apply for the drawing up of wills, it is advisable to contact a professional to ensure that all legal aspects are covered and that your wishes are set out clearly.
If you die without a will, an administrator will have to be appointed to administer your estate which will be distributed according to the laws of intestate succession. As such, your assets may not be distributed as you would have wished. It also means that the process will be delayed and that there will be additional expense and frustration which most people would not want to inflict on their loved ones during a time of loss.
Marriage and property
When drafting your will, it’s important to consider the nature of your relationship with your ‘significant other’. If you are married in community of property, you only own half of all assets registered in your name and that of your spouse. Your spouse therefore still remains a one half share owner of any fixed property you may want to bequeath to a third party which could potentially present difficulties.If you are married in terms of the accrual regime, the calculation to determine which spouse has a claim against the other to equalise the growth of the respective estates only occurs at death. Your spouse may therefore have a substantial claim against your estate necessitating the sale of assets you had not intended to be sold.
Along side your will, prepare the following in relation to any immovable property you may own –
- State where your title deeds are kept and record any outstanding bonds and all insurance
- File up-to-date rates and taxes receipts
- Record details of the leases on any property you have
- State who collects your rent
- State who compiles your yearly accounts
- State where your water, lights and refuse deposit receipts are kept