Residential properties : Securing your security deposit
Section 5 of the Rental Housing Act (RHA) allows a landlord to take a deposit from a tenant before the tenant moves into the property. This amount must be stipulated in the lease agreement and is generally an amount that is equal to 1 month rental.
The RHA, requires that the landlord deposits the money into an interest bearing account, with a financial institution. A tenant has the right to receive a statement of interest earned. The tenant is therefore entitled to receive their deposit and all interest earned during the lease period at completion of the lease. The tenant will have to provide FICA information for the landlord to invest the deposit amount.
As further protection, a tenant should ensure the landlord or managing agent is registered with the Estate Agency Affairs Board.
A landlord is entitled to deduct any expenses incurred from repairing any damage which may have occurred during the term of the lease from the deposit and interest. This is normally provided for in the written lease agreement.
The tenant has the right to see all repair receipts to ensure the expenses are for genuine repairs that have been undertaken by the landlord. This does NOT include costs for general maintenance of the property which is for the landlord’s expense.
The Importance of a walkthrough inspection
A tenant should always do a pre lease inspection, noting any defects or faults prior to moving in and this should be reduced to writing and sent to the landlord or his agent as soon as possible, or within the time stipulated in the lease. A good idea would be to take photos as this would substantiate any claims of faults and will supplement any “snag lists’.
Some landlords often agree to fix faults at a later stage and this should be viewed with some suspicion as often the faults are not fixed and the landlords then blame the tenants for any damage. A tenant is not responsible for wear and tear and should not be forced to repaint the walls (unless the tenant has caused excessive wear and tear).
Exit inspection
A tenant must always insist on having an exit inspection and this should be done when the lease comes to an end. The tenant should ensure that the original snag list is presented and any additional evidence (photographic or otherwise) as well as any additional faults that have occurred during the lease period. A tenant who is intent on getting their full deposit and interest should view this inspection with a critical eye (by ensuring the property is cleaned, the walls washed and any holes patched up).
Rental Housing Act, Amendments
This Act sets out the following criteria for both the landlord and tenant:
- Setting out the rights and obligations of the parties in a coherent manner;
- Requiring the lease to be in writing;
- The contents of a lease must include the following;
- Names and addresses of all the parties to the agreement;
- A description of the property;
- The amount of the rental;
- Reasonable escalation;
- Frequency of payment;
- The amount of the deposit;
- The lease period and the notice period.
Failure to repay the security deposit and interest, for no legitimate reason, by the landlord is a criminal offence in terms of Section S 16 (aB) (RHA) and is punishable with a penalty or imprisonment not exceeding two years or both.
To ensure your lease agreement is complaint with all the necessary rights and obligations of both the landlord and tenant, contact us on 031 – 003 0630 or charmaine@schwenninc.co.za. #rentals #durbanlawyer #schwennlegacy #leaseagreements #newblogpost
Article written by – Barry Todd
The duties of an Executor in a deceased Estate.
Nobody likes to think about the fact that they will one day die. It is a horrible visual but what about those who are left behind? This article will discuss the duties of the executor and how they help those through that process.
During your life you acquire assets for example houses, cars, shares, etc. and you also acquire liabilities such as loans, debts, etc. These assets and liabilities form part of your estate, and when you die this estate needs to be administered, divided and distributed. These processes are all done by one person in control of the estate known as the executor.
The executor’s first step would be to meet the family and gather as much information and missing documents that they don’t have and reconcile the deceased’s will in which the executor in Testate Succession will be nominated.
The second step is that the estate must be reported to the Master of the High Court’s office in which the deceased lived. http://www.justice.gov.za/master/contacts.htm.
The executor must then place a notice to the creditors informing them of the deceased’s death. This notice will be placed in the Government Gazette and the local newspaper in the area the deceased had lived. This gives creditors the opportunity to institute claims within 30 days after the notice was published.
The executor will then close all of the current bank accounts open at the time of the deceased’s death. He/she will then open up a separate account strictly used for the administration of the estate.
The drafting of accounts must be done and advertised in the same manner as the notice to creditors which is then lodged for approval at the Master of the High Court where the death was reported.
After the accounts have been approved by the master, the executor will pay all the creditors and distribute what’s left of the estate to the beneficiaries accordingly.
The Master of the High Court can help the family of the deceased on the process, however, it is usually advisable that a qualified attorney and/or deceased estate paralegal helps the family. One can approach Pro Bono.org where they will be helped for free.
It is not advisable that a family member is left as the executor of an estate of their loved one. This is burdensome especially if it is not your area of expertise. Contact us and we will help you today. Call us on 031 003 0630 or email us at Charmaine@schwenninc.co.za.
#schwenninc #attorneys #law #deceasedestates #dutiesoftheexecutor #newblog
Are you thinking of buying an investment property to rent out? If so, here are some of the things to keep in mind:
1. It is important to think about the initial costs, do you have enough earnings to qualify for a bond on a property in the first place? Are you able to pay all the necessary transfer costs such as transfer duty, attorney/conveyancer fess?
2. Then consider ownership – firstly be how you intend to register the property, are you doing so in your name or in the name of a trust or company? Consult an attorney and accountant on this point.
3. What will the monthly costs be to you from date of registration? Think of costs such as levies, rates and taxes, and your bond instalment. Also factor in insurance and maintenance costs. You should have a contingency account for amounts not covered by your insurance for maintenance and upkeep of the property.
4. A big risk is periods when you have no tenants and are not earning an income, or if you have a tenant that is not paying rental, are you prepared to pay costs while looking for a suitable tenant or ejecting a non-paying tenant?
5. How much rent can you charge? Rental needs to be based on a) The type of property b) The location e.g. is it close to shopping centres? How many people will be living on the property? You will also need to plan ahead for the annual increase of rental which usually ranges between a 5-10% increase per year. This amount needs to be carefully considered and calculated so that it strikes an important balance between profit for you as a land owner as well as fairness and affordability for tenants.
6. You will need a strong rental agreement that protects your rights as a land owner, this should include breach clauses which will give you remedies in the event that the tenant breaches his responsibilities, this should also include the fact that they agree to pay legal costs in the event that a matter ends up in the legal process.
7. Tenant vetting- what you look for in a tenant : • Reliability – this would be especially useful when it comes to payments being made every month, • Conduct and demeanour – this would be one of the top priorities, not only does the tenant’s conduct depict how they will act toward you but it is important to see how they handle stressful and or difficult conversations especially when things go wrong and there is a breakdown in communication. • Responsibility – as a property owner, you want a tenant who will look after your property the best that they can as if it was their own, who will maintain it and keep it neat and tidy • Reference checks are essential, especially from previous landlords.
When seeking a tenant the most important thing is for you as an owner to feel comfortable!
If you have any queries and or advice on buying a rental property and renting out your property don’t hesitate to contact us today on 031 003 0630 or email us on Charmaine@schwenninc.co.za.
Sexual harassment in the workplace.
http://www.probono.org.za/.
This article aims to discuss the necessity of open communication between yourself and your attorney especially when seeking and setting up a payment holiday plan.
Many people will at some point in their lives find themselves being involved in legal disputes. It goes without saying that litigating on a matter can take quite a while, especially if the matter is opposed.
In saying that, an attorney can become costly. The more time an attorney spends on your matter, the higher your legal bill.
Your financial situation can be either a short term or a long term problem. If it is a short term problem the restructuring of payments owing is much easier to do as opposed to a long term problem. It is however, important for you to maintain an open line of communication between yourself and your attorney. An attorney will only then institute legal action against you if you have not honored your commitments and/or if you haven’t advised them fully about your financial circumstances.
Your attorney may ask that you sign a contract for a certain period that limits your liability to pay them, this is known as a payment holiday. This is not to say that you are fully extinguished from ever paying your attorney again, but it is a contract that will stipulate the terms and conditions that will determine:
It is pertinent to note that a payment holiday plan will be based on the merits of a case, usually only used for a long term client and after a full financial assessment has been undertaken.
Be careful not to get a payment holiday plan confused with Pro Bono work. Most pro-bono work is work referred to attorneys by Pro Bono.Org in order to provide free legal assistance to those who cannot afford to pay for an attorney. http://www.probono.org.za/.
In conclusion, to set up a payment holiday plan with your attorney you must apply your mind to the following:
For any legal assistance or advice kindly contact us on 031 003 0630 or email us on Charmaine@schwenninc.co.za.
Written by Jessica Schwenn.
#schwenninc #yougotschwenned #blogs #paymentholiday
Securing your rental deposit
Residential properties : Securing your security deposit Section 5 of the Rental Housing Act (RHA) allows a landlord to take a deposit from a tenant before the tenant moves into the property. This amount must be stipulated in the lease agreement and is generally an amount that is equal to 1 month rental. The […]
Securing your rental deposit
Residential properties : Securing your security deposit
Section 5 of the Rental Housing Act (RHA) allows a landlord to take a deposit from a tenant before the tenant moves into the property. This amount must be stipulated in the lease agreement and is generally an amount that is equal to 1 month rental.
The RHA, requires that the landlord deposits the money into an interest bearing account, with a financial institution. A tenant has the right to receive a statement of interest earned. The tenant is therefore entitled to receive their deposit and all interest earned during the lease period at completion of the lease. The tenant will have to provide FICA information for the landlord to invest the deposit amount.
As further protection, a tenant should ensure the landlord or managing agent is registered with the Estate Agency Affairs Board.
A landlord is entitled to deduct any expenses incurred from repairing any damage which may have occurred during the term of the lease from the deposit and interest. This is normally provided for in the written lease agreement.
The tenant has the right to see all repair receipts to ensure the expenses are for genuine repairs that have been undertaken by the landlord. This does NOT include costs for general maintenance of the property which is for the landlord’s expense.
The Importance of a walkthrough inspection
A tenant should always do a pre lease inspection, noting any defects or faults prior to moving in and this should be reduced to writing and sent to the landlord or his agent as soon as possible, or within the time stipulated in the lease. A good idea would be to take photos as this would substantiate any claims of faults and will supplement any “snag lists’.
Some landlords often agree to fix faults at a later stage and this should be viewed with some suspicion as often the faults are not fixed and the landlords then blame the tenants for any damage. A tenant is not responsible for wear and tear and should not be forced to repaint the walls (unless the tenant has caused excessive wear and tear).
Exit inspection
A tenant must always insist on having an exit inspection and this should be done when the lease comes to an end. The tenant should ensure that the original snag list is presented and any additional evidence (photographic or otherwise) as well as any additional faults that have occurred during the lease period. A tenant who is intent on getting their full deposit and interest should view this inspection with a critical eye (by ensuring the property is cleaned, the walls washed and any holes patched up).
Rental Housing Act, Amendments
This Act sets out the following criteria for both the landlord and tenant:
Failure to repay the security deposit and interest, for no legitimate reason, by the landlord is a criminal offence in terms of Section S 16 (aB) (RHA) and is punishable with a penalty or imprisonment not exceeding two years or both.
To ensure your lease agreement is complaint with all the necessary rights and obligations of both the landlord and tenant, contact us on 031 – 003 0630 or charmaine@schwenninc.co.za. #rentals #durbanlawyer #schwennlegacy #leaseagreements #newblogpost
Article written by – Barry Todd
CREDITORS, DON’T DISREGARD BUSINESS RESCUE SO SOON AS A WAY TO RETRIEVE YOUR MONIES.
CREDITORS, DON’T DISREGARD BUSINESS RESCUE SO SOON AS A WAY TO RETRIEVE YOUR MONIES.
It can be said that there has been an increase in business rescue processes in South Africa.
“Business rescue, as defined by the Companies Act 2008, aims to facilitate the rehabilitation of a company that is financially distressed by providing for the temporary supervision of the company and management of its affairs, business, and property by a business rescue practitioner”.
https://m.fin24.com/Entrepreneurs/Resources/Business-rescue-explained-20150119.
One of the main purposes of business rescue is to ensure that creditors be paid out what is owed to them – albeit less than the full amount of their claim.
Although many get disheartened by the decrease in the payback of the capital amount, the proceedings are almost identical but less extreme to that of liquidation proceedings.
“Liquidation is the process of bringing a business to an end and distributing its assets to claimants. It is an event that usually occurs when a company is insolvent meaning it cannot pay its obligations when they come due”.
https://www.investopedia.com/terms/l/liquidation.asp.
From a glance of the Companies Act, it suggests that although a business rescue plan may discharge a portion of the debt owed to concurrent creditors, it would be the same amount that one would get during the liquidation proceedings in any event. Therefore either way although you may retrieve less than the capital amount they theoretically do the same/similar jobs at the end of the day.
Section (1)(b)(iii) of the Companies Act states that a business rescue plan contemplates an outcome that would indeed be a better result for shareholders than it would have been during immediate liquidation.
However, just like many areas of law in South Africa, there has not been a real consensus by the courts whether the above can be stated as true.
In Oakdene Square Properties v Farm Bothasfontein, the Supreme Court of Appeal decided that it was not intended for the Act to promote an informal type of proceedings as a way of avoiding the consequences of liquidation.
If you are a creditor or a business owner looking for advice on business rescue and/or your options on the best returns possible for your money contact our offices on 031 003 0630 or email Charmaine@schwenninc.co.za.
Written by: Jessica Schwenn.
What to keep in mind when buying a property
Our latest blog explains what should, both the buyer and seller take into account before buying or selling a property. Our blog explains various terms in a contract of sale and who is responsible for the various costs involved, these include agents commission and legal fees.
WHAT REQUIREMENTS SHOULD A PURCHASER TAKE INTO CONSIDERATION BEFORE BUYING A PROPERTY?
WHAT REQUIREMENTS SHOULD A SELLER TAKE INTO ACCOUNT BEFORE LISTING OR SELLING THEIR PROPERTY?
WHAT TERMS AND CONDITIONS MUST APPEAR IN A SALE AGREEMENT?
For any information regarding the buying or selling of a property kindly contact us on 031 003 0630 or email Charmaine@schwenninc.co.za.
WRITTEN BY : BARRY TODD
What is racism in the workplace?
What is racism in the workplace?
In the news currently is the matter of a teacher that was suspended for posting pictures of children in her class, apparently segregated by race.
Another relevant case has just been decided by our Constitutional Court, where a man was dismissed for referring to a co-employee as a “swart man” – “Black man”.
How do you as an employer or employee regulate this in the workplace? Many refer to co-workers by race – is this racist and derogatory? It is a real challenge and in this political climate a recipe for disaster.
Think of Adam Catzavelos who posted a “personal” video on the beach and what happened to him and his business. He was fired from a family business and the business has, to our knowledge, not recovered. The ramifications are huge, especially with social media when things can go viral.
The case of Adam Catzavelos is very clear. His conduct was despicable. But what of the teacher who posted the pictures – was her suspension valid? The employee who was dismissed, was his dismissed fairly?
The Constitutional Court held that the CONTEXT of the words or action are what is important in determining whether conduct is racist or defamatory or derogatory. Was the context intended to be or apparently racist? Did it belittle the “victim” thereof? Our history of segregation and apartheid is of great relevance in this. Ordinary words or actions can be determined to be racist, based on the context and the heightened tensions around racism in South Africa.
The employee who referred to his co-employee as a “swart man” (black man) did so in anger – he allegedly burst into a meeting demanding that the black man’s vehicle be removed from his parking immediately or there would be consequences.
For employers, if such an incident occurs in your workplace, you need to carefully consider our current society tensions and test the context of the incident.
For employees and the general public, be aware of Government efforts to curb racism and hate speech and think carefully. Do not act in anger and measure your words.
If you are an employer – contact us to assist you to put the necessary policies and procedures in place for these situations. We can also assist in sensitising your staff to the actions which could be considered discriminatory or racist.
Contact : Charmaine Schwenn
Charmaine@schwenninc.co.za
031-003 0630 / 083 789 7638
PARENTING COORDINATORS – WHO ARE THEY AND WHAT DO THEY DO?
PARENTING COORDINATORS – WHO ARE THEY AND WHAT ARE THEIR POWERS?
The term Parental Coordination is a form of alternative dispute resolution that is used in high conflict divorce and custody matters that must be headed by either a mental health professional or a family law professional. This type of alternative dispute resolution is usually used either pre or post divorce proceedings.
The appointment of a Parenting Coordinator is done by either:
The order or agreement will list the powers and authority of the coordinator and this order is thereafter binding on all parties.
It is paramount to remember that the High Court is the upper guardian of children and therefore can make any decision if it is in the best interests of the child or children.
Although a parental coordinator is a ground breaking integral part of the court system there are however limitaions to keep in mind.
The first limitation is that a coordinator cannot be appointed unless there is some sort of agreement in place that provides for a framework that will assist the parties in how to comply with same.
If an order is not complied with then just as any other breach of a court order, an enforcement of the order can be to comit the person to prison for their contempt.
The second limitation is that the orders need to be in the best interests of the children which must include basic frameworks for things such as:
Therefore it is important to remember that the coordinator is a facilitator that makes sure that all the provisions of the order are complied with. They do not create the provisions as this would be considered going against the judicial oversight and tresspasses on the courts exclusive jurisdiction which is entrenched in section 173 of the Consitution. This can be seen as the Third limitation.
The fourth and last limitation is that:
The Courts therefore favour this approach because of the inherent jurisdiction that is enrenched in the Constitution.
It can therefore be said that we should get used to the increasing appointments of parental coordinators.
For any assistance in a divorce and mediation do not hesitate to call us on 031 003 0630 or 083 789 7638 or email us at charmaine@schwenninc.co.za.