Article courtesy of Law Dot News | Property Act

Can Your Neighbour’s CCTV Camera Point into Your Property?

             “Good fences make good neighbours.” (Robert Frost)

The neighbours, in the affluent suburb of Bakoven, had been locked in an acrimonious dispute for almost two decades when CCTV cameras became the latest point of contention.

The cameras installed at one property had a clear line of sight into parts of the neighbouring property, including a courtyard, part of a swimming pool and entertainment area and, according to the neighbour, the interior of a bedroom. The cameras also had 24-hour surveillance and recording capability.

Security has limits

The camera owners argued that the system had been installed for legitimate security reasons, including concerns about crime and protecting their property.

The Court recognised the importance of security. The question was whether monitoring the neighbouring property was a reasonable and justifiable way of achieving that objective.

On the evidence, however, the Court was not persuaded that security was the primary concern. It concluded that the security concerns were secondary to a grievance about structures on the neighbouring property.

The evidence also showed that significant portions of the cameras’ viewing angles were directed at the neighbouring property, including areas the Court regarded as intimate and private.

Privacy does not stop at the boundary wall

Section 14 of the Constitution protects the right to privacy. As interpreted by the Constitutional Court, that protection includes a sphere of intimacy and autonomy that should be protected from intrusion.

The Court found that areas such as a private swimming pool, entertainment area and courtyard are places where people can reasonably expect to conduct their personal and family lives without being subjected to systematic surveillance.

The fact that part of a neighbouring property may be visible from elsewhere does not mean it can be placed under permanent camera monitoring. Privacy is not limited to areas of complete physical seclusion.

Could the intrusion have been avoided?

The camera installer did not deny that alternative locations were available that could protect the owners’ property without intruding on their neighbour’s privacy.

The Court also pointed to less restrictive security measures, including electric fencing, burglar bars and a security system with motion detector beams. The camera owners therefore failed to show that the limitation of their neighbour’s privacy was justified.

The Court also upheld the finding that the persistent surveillance amounted to an actionable nuisance. Continuous monitoring was materially different from a neighbour occasionally looking over a boundary wall: the neighbour, his family and guests were subjected to permanent and invasive scrutiny.

Article courtesy of Law Dot News | Property Law | Know your rights

The cameras had to move

The appeal was dismissed, leaving in place an order requiring the cameras to be removed and repositioned so that they had no line of sight into the neighbouring property.

Importantly, the order went further. The camera owners were also prohibited from installing future cameras or recording devices with a direct line of sight into the neighbour’s private property.

The Court also ordered the camera owners to pay legal costs on the higher attorney and client scale. The Court said this was justified by the way the litigation and appeal had been conducted, including the inclusion of extensive irrelevant material and an unsuccessful attempt to introduce further evidence. It also described the conduct of the camera owners’ legal representatives as objectionable and vexatious. The judgment does not prevent homeowners from using CCTV for security. It does make clear that security measures must be proportionate and should not unnecessarily place a neighbour’s private spaces under surveillance.

Installing CCTV, or concerned that a neighbour’s cameras are monitoring your property? Speak to us.

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 us for specific and detailed advice.

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Article courtesy of Law Dot News | Property Eviction

One Bad Letter and Your Eviction Falls Apart

“The single biggest problem in communication is the illusion that it has taken place.” (George Bernard Shaw)

Many landlords assume that once a tenant stops paying rent, an eviction order will inevitably follow. A recent Western Cape High Court judgment shows how wrong that assumption can be. Despite rental arrears of more than R46,000 and an apparently legitimate grievance, a landlord’s eviction application failed because of a problem many people overlook: the cancellation letter.

The dispute arose after tenants allegedly fell behind on their rental payments. The landlord sought to terminate the lease and evict the occupants. Although the alleged arrears were not seriously disputed, the case ultimately turned on a different question: whether the lease had been validly terminated in the first place.

The court didn’t even consider whether the eviction itself would have been justified. Instead, the application failed because of defects in the cancellation process.

Why the cancellation failed

The letter sent to the tenants purported to cancel the lease immediately because of the rental arrears. At the same time, it gave the tenants a future date by which they had to vacate the property and demanded payment of the outstanding amounts.

The difficulty was that the letter appeared to communicate several different and potentially contradictory things at once. Had the lease already been cancelled? Were the tenants being given an opportunity to remedy the breach? Would payment of the arrears change anything? The notice did not provide clear answers.

The court confirmed an important principle of South African law: a notice terminating a lease must be clear, unconditional and unequivocal. If a notice leaves uncertainty about the parties’ rights and obligations, it may be invalid.

In this case, the court found that the cancellation notice was ambiguous. Because the lease had not been validly terminated, the landlord could not establish that the occupants were unlawfully occupying the property. Without unlawful occupation, the eviction application could not succeed.

A costly lesson for landlords

For landlords, the lesson is straightforward. Even where a tenant owes substantial rental arrears, a defective cancellation process can derail an otherwise strong case. Before launching eviction proceedings, it is essential to ensure that all notices have been properly drafted and served, and that all requirements for a valid termination have been satisfied.

For tenants, the case demonstrates that the outcome of an eviction application is not determined solely by whether rent is owing. A landlord must also show that the lease was lawfully terminated before a court will consider whether an eviction order should be granted.

The judgment is a reminder that legal disputes are not won on the facts alone. Even where a landlord has a legitimate grievance, a defective notice can bring an eviction application to a halt before a court ever considers the merits of the case.

The lesson extends beyond landlord-tenant disputes. Small drafting errors in legal notices can have significant consequences, particularly where rights and obligations depend on clear communication.

A properly drafted notice can prevent costly litigation. If you are considering cancelling a lease or pursuing an eviction, obtaining legal advice before taking formal steps may help avoid costly delays and unnecessary disputes.

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 us for specific and detailed advice.

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Article courtesy of Law Dot News |Estate Planning | Wills | Property

Estate Planning: The Ambush Tax Lurking in the Wings

“I can’t afford to die; I’d lose too much money.” (George Burns, comedian)

At the heart of any estate plan lies your will. Pair it with a file containing all the information and documents that your executor and heirs will need to wind up your estate, and you’ve laid a solid foundation for protecting your loved ones when you’re no longer around to do so.

Hopefully, most of us have already crossed those two essentials off our “to do” list. But there’s a third step which doesn’t always receive the attention it requires: planning for the costs your estate will have to pay, including a number of taxes.

As with all things to do with SARS and tax, there are many detailed requirements and grey areas involved, so what follows is a general guide only. It’s no substitute for specific professional advice.

The big costs you should plan for

• Costs: Central to your estate planning will be understanding just how much each of your heirs will actually receive from your estate after costs, the most significant of which are usually executor’s fees and government taxes.
• Taxes: There are two main taxes to consider: estate duty, and capital gains tax (CGT). In this article, we’ll focus on the CGT aspect for the simple reason that it’s often forgotten about, and even more often misunderstood.

CGT: The ambush tax lurking in the wings

CGT is one of those low-profile taxes that lurks around unobtrusively in the wings, being ignored and forgotten about until it suddenly pops out of the woodwork.

In this case, the “popping out of the woodwork” will happen when you’re no longer around to be ambushed by it. That’s because CGT is triggered by a taxpayer’s death, which is a “deemed disposal” tax event. In other words, your assets are deemed to have been sold at market value on the day you died. And that triggers a tax liability for your estate on the asset’s growth in value since you acquired it – the capital gain.

Before we get into the nitty-gritty of putting figures to that liability, let’s share a smidgen of good news.

The good news: 3 big exclusions, boosted by Budget 2026

Note firstly that no CGT at all is payable on “personal-use assets”, retirement fund benefits and most mainstream life policies.

Secondly, there’s “spousal rollover relief”: liability for CGT on assets left to your spouse is “rolled over” so that it’s payable not by your estate but later on by your spouse (on sale) or by their estate (on death). That, of course, can make a tremendous practical difference in ensuring that your spouse will be okay financially.

Thirdly, the annual exclusion in year of death, the primary residence exclusion and the small business disposal exclusion can all reduce CGT substantially. And as we note below, Budget 2026 has boosted them all. Good news indeed!

1. Annual exclusion in year of death: If you sell assets during your lifetime, your CGT liability is reduced by an annual exclusion of R50,000 (up from R40,000). In the year of your death, this exclusion is boosted to R440,000 (previously R300,000).
2. The primary residence exclusion: This is a big one for property owners in respect of their “primary residence” (the home you ordinarily live in), with the exclusion increased from R2,000,000 to R3,000,000.
3. The small business asset disposal exclusion: If you leave a small business with a market value of up to R15,000,000 (previously R10,000,000), your estate may qualify for a R2,700,000 exclusion (was R1,800,000) on the assets of the business, which are deemed to have been disposed of on your death. Many small businesses will also qualify for wear-and-tear on assets used in the business. Quantifying this requires professional assistance.

How to calculate CGT

Now for the actual CGT calculation, which will give you a rough idea of the final liability so you can plan for it:

1. Include all your assets (except those mentioned above as not being subject to CGT) at their current market value.
2. Deduct the base cost of each asset; that is what you bought the asset for plus allowable costs such as costs of acquisition and the cost of subsequent capital improvements.
3. Calculate the capital gain or loss by subtracting the base cost from the market value.
4. Deduct all exclusions from the capital gain to calculate the net gain.
5. Multiply the net gain by the 40% inclusion rate to give you the taxable capital gain.
6. Finally, apply your marginal tax rate to that taxable capital gain to give you the final CGT liability.

Putting together a comprehensive estate plan, anchored by your will, is essential to ensure that your loved ones are properly catered for after you’re gone. You know who to call if you need any 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 us for specific and detailed advice.

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Article courtesy of Law Dot News |Property Law | Property Purchase Collapses

Property Purchase Collapses: Can You Get Your Deposit Back?

“A creature with a big enough head to make a contract should have the sense to make one it can keep.” (Barbara Kingsolver)

A R1.725 million deposit. A bank guarantee that never arrived. A property that ultimately sold for significantly less than the original price. What happens to the deposit money?

A sale that fell apart

The seller agreed to sell an agricultural property in Kyalami for R17.25 million. The purchaser paid a deposit of R1.725 million into the estate agent’s trust account. The balance of the purchase price was to be secured by a bank guarantee on request.

The seller called for the guarantee and gave 14 days to comply. When it was not provided, a further notice gave five business days to remedy the breach. The guarantee was still not furnished. The seller cancelled the agreement and claimed the full deposit.

The purchaser attempted to recover it, but the claim failed.

Rouwkoop or penalty clause?

A true rouwkoop clause – from the Dutch for “regret-purchase” – allows a party to withdraw from a sale by paying a fixed amount. It is an agreed exit mechanism, not a consequence of breach. A forfeiture clause operates differently. It is triggered by breach and is subject to the Conventional Penalties Act. The clause in this case fell into the latter category. The purchaser’s only remaining recourse was section 3 of the Act, which allows a court to reduce a penalty if it is out of proportion to the prejudice suffered.

Why the deadline mattered

The purchaser argued that the word “timeously” meant within a reasonable time, not strictly within the five-day notice period. The court rejected that argument.

Read in context, the agreement created a clear notice-and-remedy mechanism. The five-day period was the operative timeframe. “Timeously” did not introduce flexibility. It referred back to the period expressly stipulated in the contract.

Once the guarantee was not provided within that period, the seller’s right to cancel arose. What the purchaser might have done after the deadline was irrelevant.

Can the court step in?

The purchaser invoked section 3 of the Conventional Penalties Act. That argument did not succeed.

The court looked beyond the arithmetic. It considered the broader consequences of the failed transaction, including the collapse of an onward purchase, the loss of a prior offer, bridging finance, and extended holding costs.

On that evidence, the seller’s prejudice was substantial. The forfeited deposit bore a reasonable relationship to that prejudice. There was no basis for interference.

The real lesson

Deadlines in property transactions are not flexible unless the agreement says so. A deposit is not a placeholder and sellers don’t have to play nice. The bottom line? Get advice before you sign.

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 us for specific and detailed advice.

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Article courtesy of Law Dot News | Property – HOAs & Body Corporates

Bodies Corporate and HOAs: Apply Your Rules With Common Sense, or Else

“Good rules make good neighbours.” (Old proverb, updated)

The many benefits of living in a residential complex come, naturally enough, with obligations as well as rights.

With its innate potential for conflict between competing rights, community living requires a fine balancing act between the individual rights of owners and residents, and the rights of the community as a whole.

Good rules make good neighbours

Which is of course where a complex’s rules and regulations come into play. Rules provide a structured framework to regulate issues of common concern. Management rules concentrate on administrative and financial issues, while conduct rules (which we’ll focus on in this article) address issues such as noise, pets, parking, use of common property and so on. They are essential not only for protecting everyone’s individual and communal rights, but also to minimise disputes, ensure long-term sustainability and maintain property values.

A well-managed complex benefits everyone – residents, investors, landlords etc.

The sight-impaired owner and his washing machine

Of course, conduct rules are meaningless without enforcement, and that exposes everyone concerned to another balancing act: consistent enforcement versus over-rigid and unconstitutional enforcement.

A recent Supreme Court of Appeal (SCA) decision highlighted this in the case of a complex with a communal washing area.

Before buying his unit in a complex in Gauteng, a visually-impaired man was assured by the estate agent – incorrectly as it turned out – that he would be entitled to modify the washing area directly outside his unit. He duly, without body corporate authority, moved his washing machine into the area and installed piping and a tap, with a security gate and plastic roof sheeting to protect it from the elements. All this, he said, was necessary both to ensure his safety (he cited the danger of slipping in water leaks which he wouldn’t be able to see) and security for his washing machine and clothes.

The body corporate was having none of that and removed the gate and plastic sheeting, citing its conduct rules which prohibit any owner from making alterations to the common washing area. It refused his request for an exemption from the rules on account of his visual impairment, a mediation attempt failed, and eventually his appeal against a CSOS (Community Schemes Ombud Service) ruling found its way to the SCA.

What came out in the wash

The end result? The body corporate is ordered to allow the owner exclusive use of a portion of the common washing area for his washing machine, plus he can install a protective cover over it at his own expense. He must maintain both in good repair, cannot damage the common area wall, has to pay a contribution levy, and must make good all changes when he leaves.

The Court’s reasoning gives us a clear roadmap to our rights, both as bodies corporate and HOAs trying to enforce rules and regulations, and as owners feeling prejudiced by unjustifiably rigid enforcement of them:

• The duty to reasonably accommodate persons with disabilities: Our Constitution prohibits unfair discrimination and enshrines a right to dignity and equality as per the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) which prohibits any failure to take steps to reasonably accommodate persons with disabilities.
• When rigid enforcement of rules isn’t justified: The body corporate’s refusal to accommodate the owner in this case didn’t take into account that his modifications were necessary for safety reasons, they were proportionate, tailored for his disability, and confined to what he considered essential to prevent harm to himself. They caused no undue inconvenience or hardship to other members of the scheme, nor any expense for the body corporate. Its rigid attitude in enforcing its conduct rules was not justified, and its failure to give him its conduct rules electronically or in Braille was unjust.
• What does “reasonable accommodation” entail? Perhaps the most critical of the Court’s findings is this: “To achieve the objective of equality, I find that reasonable accommodation in a case like this may include allowing structural modifications, granting exclusive rights or exempting disabled residents from burdensome rules.”
• The “minimum hardship to members” principle: At the same time, a body corporate must, in establishing what is and isn’t reasonable in the circumstances, “espouse the principle of minimum hardship to its members”. Witness the strict limits imposed by the Court in this case on the unit owner’s rights of usage.

Thin end of the wedge or just a balancing act?

There may be some concern amongst bodies corporate and HOAs that this is the “thin end of the wedge” when it comes to effective enforcement of rules and regulations. When faced with individual requests which go against the rules and regulations, where should bodies corporate and HOAs draw the line?

Ultimately, the safest course is probably to keep on performing that delicate balancing act we mentioned above, plotting a careful course between individual and communal rights fairly, impartially and reasonably. Common sense isn’t as common as it should be.

Whether you’re an owner, body corporate or HOA, we’re here to help you plot that course!

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 us for specific and detailed advice.

© LawDotNews

Article courtesy of Law Dot News | Property – buying a house

Buying a House: What Costs Will You Pay, and When?

“It is a comfortable feeling to know that you stand on your own ground. Land is about the only thing that can’t fly away.” (English novelist Anthony Trollope)

With interest and home loan rates at their lowest since 2022, it’s no surprise that South Africa’s property market confidence level at the end of 2025 was sitting at a record high of 87%. That will have been boosted by the country’s positive economic outlook following Budget 2026, and by Budget 2026’s 50% increase in the primary residence exclusion (which should stimulate sales by reducing the CGT payable by sellers).

If you are a buyer about to put in an offer on a house, remember to budget for the various costs you’ll face over and above the purchase price. In all the excitement of your purchase (particularly if it’s your first house!) it’s easy to underbudget. But you really don’t want to risk any unpleasant financial surprises. If you do breach a term of the sale agreement by not paying something on time, you could even face cancellation of the sale and a damages claim.

Only with a proper budget and cash flow forecast can you be confident both that you really can afford to offer for the house you’ve fallen in love with, and that you’ll be able to pay everything you need to, when you need to.

Have a look at the list we’ve put together below and use it to prepare your own detailed cash flow forecast. Ignore anything that doesn’t apply to you and bear in mind that every buyer’s situation will be unique, so this is no more than a generalised checklist.

Costs payable before transfer

• The deposit: Most sale agreements – often titled as an “Offer to Purchase” (OTP) until it’s accepted by the seller – require you to pay a deposit, usually 5% or 10% of the purchase price.
• Bond/home loan initiation fee: This fee normally incorporates a valuation fee and is added to your loan, but check with whichever bank you use.
• Homeowner’s insurance policy and life cover policy (if required by the bank): Be sure to provide for payment of the first premiums before bond registration.
• Balance of the purchase price: If the deposit you paid and the bond you took out don’t cover the full price, you’ll need to pay the balance before transfer.
• Transfer duty: Unless VAT applies to the sale, transfer duty is payable. This is a government tax payable via SARS before transfer. It applies to all property sales over R1,210,000, on a sliding scale linked to the sale price. This can be a substantial cost!
• Transfer fees: The transferring attorney (conveyancer) charges fees based on a sliding scale linked to the sale price. Added to the account will be charges for FICA verification, deeds searches, postages and petties, other disbursements and the like.
• Bond registration fees: If you take out a bond, the bank appoints an attorney to register it, with the fees calculated on the size of the loan and including the attorney’s fees, FICA charges and a prescribed Deeds Office registration fee.
• Deeds Office fees: These are government charges for both transfer and bond registration.
• Rates clearance: Your local municipality will require advance pro-rata payment of municipal rates before it issues the necessary clearance certificate.
• Levy clearance: Similarly, if you are buying into a complex, the sectional title’s body corporate or Homeowners’ Association (HOA) will require pro-rata levy payments before issuing a clearance certificate.
• Occupational interest (if applicable): If you take occupation before transfer, you need to budget for whatever occupational interest is provided for in the sale agreement.
• Utility deposits: If required by your local municipality when opening up water and electricity accounts.
• Moving costs: Don’t overlook these when budgeting!

Some of these costs are easily overlooked, but they can add up alarmingly. So, plan for them all before you put in your offer to purchase.

Ongoing monthly costs after transfer

Include bond instalments, municipal rates and taxes, levy payments (if you buy in a sectional title or HOA), utility charges, insurance premiums for the property and the contents, and so on.

One-off costs after transfer

If you plan to do alterations or repairs, redecoration, garden revamps, furniture replacement or anything similar, add these costs to your budgeting so you don’t suddenly run out of money and have to postpone them. For long-term planning, set aside a budget for ongoing home maintenance.

As always, we are here to assist, so let us know if you have any questions, need any further information, or would like help in creating a cash-flow projection specific to your purchase.

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 us for specific and detailed advice.

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Article courtesy of Law Dot News | Personal Finance | Property | Tax – CGT Primary Residence
“We are also proposing additional tax measures to ease the financial burden on households and businesses, by adjusting personal income tax brackets and rebates fully in line with inflation.” (Minister of Finance Enoch Godongwana)

How much will I save if I sell my house?

A big highlight for property sellers and buyers is that, having remained unchanged since 2012, the primary residence exclusion for Capital Gains Tax has been increased from R2 million to R3 million. In addition, the annual CGT exclusion has been increased for individuals by 25% from R40,000 to R50,000, and for deceased estates by 47% from R300,000 to R440,000.

The big win is that when you sell your primary residence (the home you live in), the first R3 million capital gain is now excluded from CGT.

Have a look at the illustrative savings calculation below:

Primary residence CGT exclusion: R2m vs R3m

Transfer duty threshold unchanged

Unchanged from last year, you pay no transfer duty if the property you are buying sells for at (or below) the set threshold of R1,210,000.

Source: SARS

“Bracket creep” relief for taxpayers

Individual taxpayers:Your tax rates (and the associated rebates and medical tax credits) are increased in line with inflation. That’s welcome relief after last year’s unchanged tax tables which resulted in “fiscal drag” (also referred to as “bracket creep”) for anyone receiving a salary increase that pushed them into a higher tax bracket.

Trusts: Special trusts are by and large taxed as individuals, but other trusts are taxed at a flat rate of 45% – also unchanged from last year.

Source: SARS

Corporate taxes: The tax rate for companies remains unchanged, with substantial relief for smaller businesses.

Source: SARS

“Sin taxes” up: The details

Most sin tax increases were generally in line with or slightly below inflation. See the table below for full details.

Article courtesy of Law Dot News | Personal Finance | Property | Tax
Table 4.8 Changes in specific excise duties, 2026/27

Source: National Treasury (Table 4.8)

How much more or less will you be paying in income tax, petrol and sin taxes?

Use Fin 24’s Budget Calculator here to find out.

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 us for specific and detailed advice.

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Article courtesy of Law Dot News |Family Law | Property

Love and the Law: Cohabiting? Get Your House in Order Now

“All you need is love… and a good lawyer.” (Anonymous)

February, with its Valentine’s Day chocolates, roses and declarations of undying love, should be a month for romance, not legal niceties. But in the real world, love and the law are inextricably linked because any relationship’s structure and consequences are inevitably governed by legal principles. Losing sight of that can expose you to unnecessary angst, dispute, and litigation.

A recent High Court fight between an estranged couple over their jointly-purchased dream house illustrates this neatly.

Broken dreams, and a fall out over the house

A couple’s four-year romantic relationship saw them living together first in her mother’s house and then in his apartment. They then decided to buy a house together with the idea of making their relationship more permanent.

Unfortunately, that dream came to nought – their relationship ended a month after the property purchase, leaving only one of them to live in the house and to pay all the ongoing costs while they decided what to do next.

In due course they fell out over how to end the co-ownership and how to adjust their respective claims for past and future property costs.

Their dispute reached the High Court, which ordered firstly that the co-ownership be terminated. This was necessary, because no co-owner can be forced against their will to remain a co-owner where the relationship between the co-owners has deteriorated to such an extent that it can’t continue.

Then, using an old Roman law remedy still in use today (the “actio communi dividundo”) the Court dealt with both the division of the property, and the adjustment of the various financial claims between the parties. As is usually the case, these were complex and intertwined after years of cohabitation.

Importantly, the Court noted a modern move away from the traditional principle that the property should necessarily be sold by public auction to the highest bidder, towards a much more flexible approach based on the Court having a wide discretion to ensure a fair and practical outcome in each case.

Thus, having considered all the circumstances, wishes and claims of both parties, the Court ordered that the ex-partner living in the house has a first option (valid for 60 days) to buy the other’s half share at valuation. If he doesn’t, he must offer it for sale on the open market at a fair and reasonable market-related price. If there’s still been no sale after 6 months, the Sheriff of the High Court becomes a “receiver and liquidator” and has 4 months to auction the house. The bond, costs and parties’ related financial claims will be settled from the proceeds as directed by the Court.

“Co-ownership is the mother of dispute” – But it needn’t be

“Co-ownership is the mother of dispute” (“communio est mater rixarum”) is another old Roman law concept mentioned by the Court. It confirms that joint ownership has always, since ancient times, inherently provided fertile ground for instability and dispute.

But that needn’t be so. An upfront agreement between joint owners, whether their arrangement is grounded in a commercial or a personal relationship, can hugely reduce the risks of later uncertainty, disagreement and litigation.

Put as much detail into your agreement as you can, including a detailed process of how to end your co-ownership if required. Litigation – with its delay, expense, and uncertain outcomes – should never be embarked on lightly. As the Court wryly quoted from a previous decision, “a court cannot perform miracles”. It will of course do its best to craft the fairest possible outcome for both parties, but avoiding the dispute altogether is always a better option for everyone involved.

P.S. Don’t forget your cohabitation agreement

As a final thought, if you are living with your life partner, you should have a full cohabitation agreement to cover not only your co-ownership arrangement, but also all the other financial and personal aspects of your relationship that would normally be governed by our marriage laws.

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 us for specific and detailed advice.

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Article courtesy of Law Dot News | Property – Parking Disputes

Parking Disputes and the “Reasonable Neighbour” Test

“Wouldn’t it be nice to get on with me neighbours?” (from “Lazy Sunday” by  Small Faces)

Maintaining friendly relations with the neighbours, or at least an “I’ll ignore you if you ignore me” sort of neutrality, has probably been a primary aim of homeowners since the dawn of history. No doubt even our cave dwelling ancestors were as keen to get on with the Joneses next door as they were to keep up with them. But as we all know, it’s not always easy.

A recent High Court fight over parking rights is unfortunately pretty much par for the course when it comes to neighbourly relations deteriorating into open conflict, both inside and out of the courtroom.

“You can’t park here!” “Yes, we can!”

The setting for this fight: Higgovale, a small and affluent suburb on the slopes of Table Mountain in Cape Town. In one corner: a couple with the right to access their garage using a servitude road. In the other corner: the neighbours, alleged to have impeded the couple’s garage access by parking in the road.

At the heart of the dispute: the road servitude. Servitudes involve a balancing act between the right of the “dominant owner” to exercise the servitude and the right of the “servient owner” to have the servitude exercised in such a way as to impose the “lightest burden” on their property. The tensions inherent in such a relationship can easily escalate into conflict – exactly what happened here.

The garage-owning couple’s initial stance was to ask the Court for a blanket interdict against all parking by the neighbours in the road, but they later softened that to ask only for an order against their garage access being obstructed.

The Court had no hesitation in ordering that the neighbours “are interdicted and restrained from parking vehicles on the servitude area at … Higgovale, in such a manner as to unreasonably obstruct the applicants from entering and exiting their property and exercising their right of way.”

In doing so, the Court took the parties to task for failing to settle their dispute out of court, and urged them “to engage with each other in a manner that promotes the spirit of ubuntu, and the constitutional vision of a caring society based on good neighbourliness and shared concern” (emphasis supplied), and to consider demarcating parking bays in the road as a short-term solution.

The parties now have to pay their own costs (except for the costs of one interim application), and they’re effectively back to square one: having to engage with each other to try to find a fair solution.

What’s a “reasonable neighbour”?

Per the Court (emphasis supplied): “While the common law requires that neighbours act reasonably, the Constitution shows what a reasonable neighbour looks like. She is not only concerned with advancing her own private interests but cares also for the needs of her neighbours. She seeks mutually beneficial solutions. The mindset of the reasonable neighbour is one of collaboration, not competition. She sees herself not as an isolated individual, but a partner in an interdependent community of persons, all of whom are to be respected and valued.”

First prize: Settle!

Courts want us to settle these sorts of disputes in that collaborative spirit, without recourse to law. But if a friendly discussion over a cup of coffee doesn’t resolve the situation, more robust action might be unavoidable – we’re here to help if you need us.

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 us for specific and detailed advice.

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Article courtesy of Law Dot News | Property – Property Transfer

The Transfer Process in a Nutshell

“Don’t wait to buy real estate. Buy real estate and wait.” (Will Rogers)

Spring is in the air and, as the annual uptick in property sales kicks in, let’s address two questions commonly asked by both sellers and buyers who are unsure about exactly what happens after they sign their sale agreement:

1. How does the transfer process work?
2. How long does it take before the seller gets paid and the buyer becomes the new registered owner?

Let’s begin with this simplified “in a nutshell” flowchart of the transfer process:

How long does it all take?

How long is a piece of string? If everything goes swimmingly and the bureaucratic stars truly align in your favour, the total timeframe from signing the sale agreement to popping the champagne could be as little as eight weeks. On average, however, it’s safer to work on no less than ten to 12 weeks, and possibly a lot more.

What could delay things? This is a complicated process involving a disparate array of role-players and a host of opportunities for unforeseen delay. Some of the more common sources of delay (and frustration!) centre on bond approval, bank processes, SARS and municipal delays, clearance certificates and repairs, lost title deeds, intervening public holidays, and Deeds Office backlogs. But the list really is endless.

Bottom line: you need professionals in your corner to protect your interests and to move the process along as quickly as possible. We’re here to 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 us for specific and detailed advice.

© LawDotNews