RENTING A PROPERTY? KNOW YOUR RIGHTS

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Many people these days do not own a property due to financial reasons of not qualifying for a bond or due to work relocation which possibly makes it impractical to buy a house.  The result is that more people rent property which brings into effect a contract between a landlord and a tenant.

This contract can be verbal, unless the tenant requests the landlord to have the agreement reduced to writing or vice versa. A written contract is the safest route to go as it stipulates the terms and conditions upon which the property is occupied. It furthermore eliminates any possible misunderstandings that may arise between the parties, thereby reducing unnecessary disputes and costly litigation.

Common disputes which arise are:
1. Non-payment of rental;
2. Punctuality of rental payments;
3. Payment of municipal fees etc.;
4. Who is responsible for certain maintenance on the property;
5. Expiry / termination of the contract;
6. Cancellation in cases of breach of contract by either party;
7. Notice periods.

By reducing these essential terms to writing, it binds both parties and gives them a clear route to follow if they wish to call on any of their rights.

A problem that often arises for landlords is with a defaulting tenant, where the tenant who entered into the agreement is an entity such as a company or close corporation.  These are often "shells" and even if a judgement is obtained against a defaulting tenant for arrear rentals, the landlord has no success when executing the warrant of attachment via the sheriff, because the entity often has no assets.  It is therefore of the utmost importance that the representative/s of the entity sign as co-tenants to the contract. This will entitle the landlord to institute action against all the signatories to the lease agreement, resulting in a much greater chance of recovering arrear rentals or damages.

It is also important that a complete list of defects be compiled and signed by all parties within the first few days after occupation of the premises.  This will ensure that once the contract comes to an end, the parties can once again inspect the property  and compile a list of defects and use the deposit to remedy the defects, if needs be.

Lastly, it would be a good idea to obtain the permission of the tenant/s to do a background and credit search prior to entering into the rental contract, to ensure that the tenant has the financial means to meet the rental commitments of the contract.

By considering and implementing the above basic principles, the renting of a property stands a much greater chance of being a positive experience for both landlord and tenant.

For more information or any enquiries contact, Van Niekerk Steyn of Rauch Gertenbach Attorneys Inc. at 044 601 9900 or office@rgprok.co.za .

 

HANDLING OF SPEEDING FINES

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In South Africa, as in most other countries in the world, speed restrictions are determined and regulated by legislation. It then remains the duty and responsibility of every driver of a motor vehicle to make himself / herself aware of what the speed limit is in the area where he / she is driving.

If a driver exceeds this prescribed limit, he / she may be pulled over and fined by a traffic officer. The amount of this fine will depend on the extent to which the limit has been exceeded. In cases where the speed limit was exceeded by 40km / h or more, the driver of the vehicle may be arrested and brought before a court without a fine being imposed.
In instances where a fine is determined and issued, the driver is allowed a period of time to pay the fine or alternatively to appear before the relevant court to state reasons why he / she believes there to be a legitimate reason why the speed limit was exceeded and why he / she should therefore not be liable to pay the fine, or to apply for a reduction of the fine amount.

Should a person not pay the fine or fail to appear before the court on the prescribed court date, the court may issue a warrant for that person's arrest. This warrant is then circulated on the traffic authority system and an offender runs the risk of being arrested at a roadblock in execution of this warrant. Furthermore, when the driver / owner of the vehicle that incurred the fine, applies for the renewal of his / her vehicle license, the outstanding fine may appear on the system and prevent the license from being issued.

In cases where a fine is imposed by means of a speed camera and not by a traffic official personally, a person may, after being subpoenaed to appear in court, challenge and argue the validity and / or legality of that specific fine and have it tested in court.

It is never wise to ignore a traffic fine, or to simply throw it out of the car window. In fact, it is better to keep to the prescribed speed limit, as violating the speed limit does not only endanger the driver's own safety but also that of other motorists and pedestrians.

For more information please contact Ferdi Scheepers on 044 601 9900 or office@rgprok.co.za.

 

CAR ACCIDENT: POLICE, CIVIL CLAIMS, INSURANCE

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Often victims of a motor vehicle accident have a misconception about the different parties that play a role and perform specific functions post accident. Legal practitioners often hear statements such as "The police have already taken a statement from me" when an affidavit must be drawn up in a civil case arising from the same accident. The question is who are all the role players and what are their respective roles? 

Police
Firstly, it is important for the police to get information that will enable them to determine how the accident happened and who should be held accountable. The police investigation determines whether a person will be criminally charged with a traffic violation and / or a crime such as reckless and / or negligent driving or culpable homicide (manslaughter), or even murder.

Short-term insurers
The short-term insurer is involved where damage to a vehicle or other property was incurred. Statements of how the accident happened and the damage assessment (assessors and panel beaters) are normally used in the process. Police affidavits and accident reports are sometimes called on as evidence.

Civil claims and proceedings are often instituted (insurance companies) in cases where a party to an accident does not have short-term insurance or where a dispute arises about the merits of the accident or extent of the damage. This process can once again mean that statements and evidence must be obtained to prove the claim. Police documentation can be used herein but is not a definite requirement.

Road Accident Fund
Claims for personal injury and death of dependents (don’t you mean breadwinners and not dependents?) are instituted against the Road Accident Fund. This process involves a separate investigation in which affidavits are obtained. Police statements and evidence can be used, but it is not a requirement that the state had to accuse and successfully prosecute before these claims can be legally recognised. On the contrary the state's investigation into a crime plays a limited role and the attorney who handles a claim against the Road Accident Fund, has limited interest and queries concerning the outcome of the criminal case. Only if a person is killed in a car crash, does it becomes necessary to obtain the results of the inquest or criminal prosecution so as to establish a successful claim against the Road Accident Fund.

Compensation Commissioner
If an employee is killed or injured in a car accident while on duty, claims are made against the Compensation Commissioner and a separate investigation is lodged. Disciplinary action against an employee who caused a motor vehicle accident in the course of his employment, can lead to a separate investigation that consists of the collection of all evidence (statements, file contents and accident reports).

For more information you are welcome to contact Barend Kruger of Rauch Gertenbach Attorneys at 044 601 9900 or office@rgprok.co.za ; www.rgprok.co.za  .