Article courtesy of Law Dot News

Property Law – Your Neighbour Builds Without Plans – Can You Get a Demolition Order?

“The primary remedy therefore is an order for removal of the structure” (extract from the judgment below)

What can you do if your neighbour has started (or finished) building without the necessary municipal approvals?

In a nutshell, our courts will very probably assist you with a demolition order, as a recent High Court decision around a long-running property encroachment illustrates.

The 16 year saga of an encroaching garage

• A couple, owners of a property next to a church Mission, expanded their house in 2004 by building a brick garage.
• They thought they were building on their own land, having in 1998 built a wall along what they genuinely – but mistakenly – thought was the correct boundary between the two properties.
• As we shall see below, their fatal mistake was building their garage without municipal plans or approval.
• In fact the garage was inadvertently built on Mission land, but the Mission was having none of that –
  • First in 2012 it asked the couple – and another neighbour in the same position – to demolish.
  • When the couple refused (the other neighbour complied) the Mission in 2014 laid criminal charges against them for failing to comply with the relevant Act (the National Building Regulations and Building Standards Act). These charges, for purely technical reasons, failed to stick.
  • On pressed the Mission, this time turning to the local municipality for help in 2016. The municipality duly issued a formal Notice requiring demolition of the garage as it had been erected illegally without plans or permission. The couple simply refused to either receive the Notice or to remove the encroaching garage.
• Which brings us to the High Court in 2017, with the Mission applying for a demolition order and the couple asking the Court to rather order the Mission to transfer the relevant piece of its land to them against payment of reasonable compensation.

What about alternatives to demolition?

A court deciding a demolition application has “discretion to reach an equitable and reasonable solution in terms of the common law by ordering payment or compensation rather than removal in cases where the cost of removal would be disproportionate to the benefit derived from the removal”.

In this respect said the Court (emphasis supplied) “the encroaching owner’s own conduct plays an important role” and “while one is acutely aware of the financial implications, inconvenience and disruption which the partial demolition will cause the [couple], the upholding of the doctrine of legality, a fundamental component of the rule of law, must inevitably trump such personal considerations.”

Commenting on the couple’s “obstructive behaviour” in this case, and finding that they “are indeed in legal and administrative breach of the law … to allow them to keep the structures where they are, would be to perpetuate the illegality”, the Court ordered the couple to demolish their illegal garage within 90 days.

So if you are the neighbour planning to build…

Whilst the case in question deals with encroachment on another’s land, our courts have applied exactly the same principles to a wide variety of “neighbour dispute” cases – sea view obstructions, failure to observe building lines and the like.

So don’t even think of starting to build without having all necessary municipal plan approvals and permissions in place!

And if you are the objecting neighbour…

The couple in this case put up an argument that the Mission couldn’t demand demolition as it had “acquiesced in their occupation of the relevant land because it did not object when they built the wall on the church ground in 1998, and did not complain when they built the ‘offending’ garage in 2004 or 2005.”

Factually the Mission’s long history of actively objecting to the unlawful construction put an end to that argument, but the longer you delay in objecting and taking action the greater your risk of facing a similar argument. Take immediate action against any neighbour building unlawfully.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

© LawDotNews

Article courtesy of Law Dot News

The Most Important Legal Document You Will Ever Sign, Your Last Will & Testament!

“It is not intended for the Court to make a will for the deceased based on what his intentions may have been” (Quoted in the judgment below)

As a general rule our law holds us to our agreements and statements, whether we express them verbally, electronically or in written form.

But there are exceptions – some things just have to be in writing and signed before the law will recognise them. One of those exceptions is quite possibly the most important document you will ever sign – your “Last Will and Testament”. Ultimately it’s your final gift to your loved ones – a gift that ensures they are properly provided for when (not “if”) you die.

Don’t neglect this or procrastinate – without a will you have forfeited your right to choose who inherits your assets and who is appointed as executor. And it’s equally vital to validly update or replace your will after a significant “life event” (marriage, birth, death, divorce etc) – we’ll consider below the sad case of an accountant who intended to change his will but just never got around to it.

But first, what must you do for your will to be valid?

The formalities

To be valid, a South African will must comply with a list of formalities. There are several of them and they require strict compliance, so getting specific legal help is a no-brainer here. But in general terms your will should be in writing and signed by you in the presence of two “competent” witnesses.

The question arises whether in this age of electronic contracts and signatures an “electronic will” (perhaps in an email, a video, a Social Media post or the like) might suffice. In short, the answer is almost certainly no, it won’t. The Master of the High Court (who accepts your will as valid or not) needs to see a piece of paper and physical signatures. And the same applies to any subsequent amendments to your will.

An escape route

There is however a possible escape route – our Wills Act provides that a Court may order the Master to accept an otherwise invalid will when satisfied that it was intended by the deceased to be his/her last will. That’s a great tool which has often enabled our courts to avoid situations of “injustice through formality”, but there is still absolutely no safe substitute for a properly-executed will.

As this recent High Court judgment illustrates all too clearly…

The accountant who emailed his “Final will” to his fiancée

• In 2006, a “very meticulous” accountant drew up a written will, properly drawn and formalised. In it he left everything to his then wife, from whom he was divorced in 2011.
• In 2014 he became engaged to another woman with whom he had been in a “romantic relationship”.
• On 4 January 2016 he emailed his new fiancée, under the subject line “Final will”, recording in part that “This serves as my final will and testament … If I die, all my assets and investments go to [my fiancée] … “My life policies must all go to [my fiancée]”.
• Subsequent emails made it clear that both the accountant and his fiancée were aware that there could potentially be disputes regarding the validity of the emailed “will”, and accordingly an “Action” list that the fiancée then sent to the accountant included an action item “Will”. In the end however he never got around to actually making and signing a written will.
• When the accountant died on 14 September 2016, the Master appointed as executor the bank nominated in his 2006 will.
• The fiancée approached the High Court for an order recognising the 2016 email as the true will, alternatively revoking the part of his 2006 will leaving the estate to his ex-wife. Unsurprisingly, the ex-wife opposed this application.
• Firstly, the Court accepted on the facts that the accountant had indeed drafted the email, but it then turned to the second leg of its enquiry – “Whether the deceased intended the disputed Will to be his Last Will and Testament”.
• Commenting that “it is not intended for the Court to make a will for the deceased based on what his intentions may have been”, the Court found that it was “improbable that he would have intended the disputed Will to be his Last Will and Testament”, and that – this is the critical part – his email was “nothing more than an email in which he was assuring the applicant that he will make her a beneficiary of his estate”.
• The end result – the accountant clearly intended to leave his estate to his fiancée. But he never got around to drawing up a formal written will to that effect, so the 2006 will stands, the ex-wife takes all and the fiancée leaves with nothing.

The bottom line – “intention” is not enough!

Whatever you intend should become of your worldly goods, and no matter how you may have recorded your wishes, the only safe way to ensure that they are honoured is to execute a valid written will.

This is a vital document and there are dire consequences to not getting it 100% right so ask your lawyer for help!

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

© LawDotNews

By: Sean Bosse

The Cost of Litigation

The very nature of business and our commercial interactions with each other means that the ground is always fertile for disputes to arise. In cases of dispute that cannot be resolved between the parties on an amicable basis, either one or both parties may proceed to have the dispute referred to court for a final determination.

The fact that everyone in South Africa has the right to access to justice, does not always mean that it comes without cost. In this article, I explain in broad terms the nature and application of costs in litigation proceedings.

In general, our legal system is premised on the so-called adversarial system meaning that parties to a dispute will present and argue their respective sides of a matter in a dispute before an impartial judge, magistrate, arbitrator, or the like. More often than not, the disputing parties will employ the services of professional legal representatives to assist with the preparation and presentation of their cases.

The dispute resolution procedure.

A legal representative renders his/her services to his/her client on the basis of a contract of engagement, colloquially referred to as a mandate. The mandate spells out, among other things, what services will be rendered by the legal representative and what he/she will charge the client for such services.

The legal charges are usually made up of two parts: out of pocket expenses, also known as “disbursements” such as: costs of travel, sheriff services, advocates charges, courier charges and the like. The legal representative will also charge his/her client a time-based amount for the services he renders when employing his skills and expertise to the matter. These costs are known as the “attorney and own client costs” and are derived from the mandate concluded between the legal representative and his/her client.

In the process of the legal representative executing his/her client’s instruction and performing his/her services under the terms of the mandate, the client will be invoiced on a regular basis by the attorney his legal charges for work done. The client will be required to pay these legal charges to the attorney as and when they become due.

As a general rule, the party who is successful in the litigation matter will be awarded an order by the court for the loser to pay his/her costs. The rationale hereof is, in general, that the loser will be required to recompense the winner a portion of all the legal charges that he has paid in successfully bringing or defending the legal action. The amount of such legal costs that the loser must pay depends on the nature of the award of costs.

If the court orders the loser to pay the winner’s costs on the scale as between “attorney and own client”, this means that the loser will be required to pay almost all of the winner’s legal costs that he/she can show was incurred.

If the court orders the loser to pay the winner’s costs on the scale as between “attorney and client”, such costs will be payable at a rate usually lower than that of the first-mentioned scale as determined by the charges emanating from the mandate.

Lastly, the court may order the loser to pay the winner’s costs on the scale as between “party and party” and which scale of costs is the lowest level of charges that can be recovered and that is regulated by legislation.

Irrespective of the costs order, the winner of the litigation will be required to prove and quantify his/her costs incurred by way of the preparation of a Bill of Costs. This bill tabulates each and every cost item incurred and provides a reference to the date of such cost item incurred and brief explanation thereof.

The Bill of Costs is referred to both the loser and to an independent adjudicator known as the Taxing Master. The Taxing Master will, on a prescribed date made known to both parties, invite them or their legal representatives to persuade him (Taxing Master) why certain cost items should be refused. The idea behind this process is to ensure that on a final determination, the costs recoverable from the loser is fair and reasonable.

Once the Bill of Costs has been carefully considered, the Taxing Master will approve it, and which approved Bill of Costs is now referred as the taxed allocator. This taxed allocator represents the amount that the loser must pay to the winner.

Are there any alternative courses of action?

Litigation is not for the feint-hearted in terms of the time and process but also in respect of the potential legal costs that may be incurred and that will be payable by the loser. It is therefore advisable that all business owners review their contracts and ensure that they include therein the basis on which costs will be recoverable from the other contracting party in the event of a dispute.

It is equally advisable that before parties’ rush into protracted litigation, consideration be given to alternative means to resolve disputes that will both be a time and money saving alternative. This includes consideration of self-imposed mediation or assisted mediation. The use of arbitration is another alternative to consider that, while costs will be incurred, is sometimes a faster process and eliminates time-spend. Also, the access to tribunals established under law giving access to the public to various ombudsman must also be carefully considered.

When all else fails and litigation is the best alternative, we recommend that you discuss the potential legal costs with your legal representative to agree on costs management arrangement other than one that is only time-based. This can be achieved in numerous and, sometimes, innovative ways such as a fixed-charge arrangement, contingency arrangement (in limited circumstances), a pre-payment arrangement and such similar fee structured arrangements.

Good luck!

Disclaimer to this article: This article is published for you to read and, if you so wish, share with others on the understanding that at all times the copyright herein will and is the sole and exclusive ownership of the author. The article is made available for informational purposes only and does not in any way constitute legal advice. No representations as to the accuracy, completeness, suitability or validity of this article is made. No liability will attract to the author for any losses, injury or damage you may suffer arising out of your use of this article. It is recommended to always seek professional assistance of a qualified lawyer at all material times.