Monthly Archives: November 2017

Removing an unpaying tenant

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If your tenant has failed to pay his or her rent, it can be tempting to simply kick them out yourself and change the locks. However, do so would be considered illegal, even if the tenant has become an illegal occupant. The reason is because of the PIE Act.

In sum, the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) (1998) provides procedures for eviction of unlawful occupants and prohibits unlawful evictions. The main aim of the Act is to protect both occupiers and landowners. The owner or landlord must follow the provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) (except in areas where ESTA operates) if they want to evict a tenant.

Who is covered?

Anyone who is an unlawful occupier, which includes tenants who fail to pay their rentals and bonds, is covered by PIE. It excludes anyone who qualifies as an ‘occupier’ in terms of the Extension of Security of Tenure Act

When is an eviction lawful?

  1. For an eviction to happen lawfully, certain procedures must be followed. If any one of them is left out, the eviction is unlawful. So, if an owner wants to have an unlawful occupier evicted, they must do the following:
  2. give the occupier notice of his/her intention of going to court to get an eviction order.
  3. apply to the court to have a written notice served on the occupier stating the owner’s intention to evict the occupier.
  4. The court must serve the notice at least 14 days before the court hearing. The notice must also be served on the municipality that has jurisdiction in the area.

After a landlord intrusts their attorney to commence eviction proceedings, the following happens:

  1. Typically, (except in a case of urgency, e.g. if the tenant is maliciously damaging the leased premises because he got notice to vacate) the attorney will call on the tenant to remedy the breach (usually failure to pay rent on time);
  2. If the tenant fails to deal with the demand, the tenant will be considered to be in illegal occupation of the property;
  3. The attorney then applies to court for permission to begin the eviction process. The court gives a directive as to how and on whom notice of eviction should be served;
  4. The attorney doesn’t give the tenant notice at this time;
  5. The application to court sets out the reasons for the application and the personal circumstances of the occupants;
  6. If the courts are satisfied that it is fair to evict the tenant and all persons occupying the property with him, it gives a directive as to how the application for eviction must be served;
  7. The sheriff then serves the notice of intention to evict on the tenant and the Local Municipality;
  8. The occupants have an opportunity to oppose the application, and explain why they should not be evicted;
  9. If there is opposition, the matter gets argued before a magistrate or judge, who decides whether an eviction order can be granted, and if so, by when the occupants should vacate the property within a stipulated time;
  10. If the tenant does not oppose, the court will grant the eviction order;
  11. If the tenant fails to move, the attorney will apply to Court for a warrant of ejectment to be issued by the Court. This process can take a further three to four weeks.

Reference:

This article is a general information sheet and should not be used or relied on as legal or other 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 legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).

What happens if I die without a will?

B1Attorneys often emphasise the fact that you should have a will drawn up and revise it regularly in order to facilitate the administration of your possessions after your death. Many people still neglect to do this. The problem is that, should a person die without leaving a valid will, in other words intestate, his/her estate will be administered and distributed according to the stipulations of the Intestate Succession Act, 1987.

Below is a basic example of the effect an intestate death will have on the distribution of an estate. Should the composition of the beneficiaries of the deceased be more complex, the administering of the estate in terms of the Intestate Succession Act will also become more complicated.

Let us assume that person A dies and the value of his estate is R1.8 million. He is survived by his wife (B) and two children, of which one is of age and the other is a minor.

Scenario 1:

A and B are married out of community of property.

B inherits R250 000 or a child’s portion, whichever is the largest.

A child’s portion is calculated by dividing the total value of the estate by the spouse and number of children, in other words R1.8 million/3 = R600 000.

The spouse and children therefore inherit R600 000 each.

Scenario 2:

A and B are married in community of property.

B inherits 50% of the estate due to the marriage in community of property.

B also inherits R250 000 or a child’s portion, whichever is the largest, with regard to the other half of the estate.

A child’s portion is calculated by dividing half of the total value of the estate by the spouse and number of children, in other words R900 000/3 = R300 000.

The spouse inherits R1.2 million and the children R300 000 each.

How does a minor receive their inheritance?

The inheritance of the minor will be paid to the Master’s Guardian’s Fund, as there is no will which determines that a minor’s inheritance should be placed in e.g. a testamentary trust, where the funds will be administrated on behalf of the minor until he/she becomes of age or reaches any other specified age.

The fact that the inheritance of a minor will be paid to the Master’s Guardian’s Fund may place the spouse in a dilemma such that he/she has to devise plans to finance the amount payable to the Master’s Guardian’s Fund to the benefit of the minor. Alternatively, she could register a mortgage against an immovable property in favour of the Master’s Guardian’s Fund.

When there’s no will

In the case of a death without a valid will there will be no person or institution appointed to support the surviving spouse in the administering of the estate. This should not usually present a huge obstacle, but the spouse should consider carefully which person or institution he/she appoints to assist them in this task. He/she should also negotiate the executor’s fee with the relevant person or institution before the administering of the estate commences.

This article is a general information sheet and should not be used or relied on as legal or other 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 legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).