by Vicky | 15, 01, 19 | Uncategorized
Changes to Matrimonial Property Regime
We regularly meet clients who are married in community of property, as they did not sign an ante-nuptial marriage contract before getting married. This can cause challenges, particularly for those who plan to run their own businesses.
The good news is that an application can, in certain circumstances, be made to court for permission to change your marriage contract – from being in community of property to one that is out of community of property.
If you would like to assess whether your circumstances may qualify for the above relief, we would love to chat with you regarding your marriage contract.
Please contact Stuart or Vicky for further information (Stuart@fouriestott.co.za / Vicky@fouriestott.co.za). Or for any other queries please fill out our contact form here.
by Vicky | 06, 12, 18 | Uncategorized
For many reasons South Africa has had a difficult year. In tough financial times debtors may increasingly fail to settle their accounts and litigation may be a life line for your business. With the wrong advice, litigation can be expensive, time consuming and only end in benefiting the lawyers. Not all lawyers are sharks! Appropriate litigation, with a clear direction and strategy, which weighs up the likelihood of recovery against the specific circumstances of the matter, can be critical.
A lawyer can help with the litigation process
A lawyer looking after your best interests will give you realistic and honest advice on the merits of your matter and whether or not you should proceed with litigation. Don’t lose an opportunity to take legal action that may benefit you or your business due to stereotypes or lack of information.
For real advice and an assessment of whether our litigation team can assist you, please email Chris Salmon on chris@fouriestott.co.za. Or complete our online enquiry form.
by Vicky | 06, 11, 18 | Uncategorized
Why do you need a Shareholders Agreement?
Humans are relational beings and, regardless of good intentions, life does not always go according to plan. That is why, when you have more than one shareholder in a company, it is vital that you have a shareholders agreement drafted for your specific needs.
The purpose of a shareholders agreement is to:
- Protect the shareholders of the company;
- Set out the rights and duties of the shareholders (and directors);
- Set out the procedure for valuation and sale of shares;
- Deal with pre-emptive rights (other parties with preferent rights to buy shares);
- Set out the procedure for dispute resolution.
Some of the above items can be addressed in the Company’s Memorandum of Incorporation (“MOI”).
It is preferable to deal with them in a shareholders agreement for three reasons:
- The MOI is a public document, whereas the shareholders’ agreement is a private document.
- Any amendments to the MOI must be lodged with Companies and Intellectual Property Commission. Whereas amending the shareholders’ agreement simply requires a resolution of the shareholders.
- There are some aspects of a shareholders agreement which are not addressed in the Companies Act 71 of 2008 (“the Act”) or the MOI.
The Act provides that the provisions of the MOI of a company take precedence over those in its shareholders agreement to the extent of any conflict between them. It is therefore crucial that the MOI be consulted when the shareholders agreement is drafted in order to ensure that the provisions are valid. Depending on the circumstances, it may be necessary to amend the MOI.
We recommend that you have your company documents reviewed to ensure that your shareholders agreement aligns with your intentions and the Company’s MOI.
Read more about company law, or should your require a shareholders agreement or advice on your existing shareholders’ agreement and/or MOI please contact Stuart Fourie; stuart@fouriestott.co.za or Vicky Stott; vicky@fouriestott.co.za.
by Vicky | 23, 10, 18 | Uncategorized
Navigating Residential Evictions
Residential evictions are unfortunately a common occurrence, particularly in times of recession and rising living costs. Furthermore, a tenant refusing to vacate the premises often goes hand in hand with the same tenant being in arrears with unpaid rental and utility bills, thereby giving rise to a damages claim and eviction proceedings.
To add insult to injury, the eviction procedure is not a particularly quick process. It involves two court applications, the first being the authorisation of an eviction notice to be served upon the tenant, and the second part being the actual eviction application where, if successful, the court will set a date for the tenant to vacate the premises. If the tenant then fails to leave the premises, the Sheriff will remove the tenant and all other occupants within the premises. How quickly this happens is largely dependent both on your attorney and the court availability for the two application dates.
This procedure can be especially traumatic if you depend on this rental income to pay the bond on the property, or for your own living expenses. Whilst eviction applications can be brought on an urgent basis, these are only in exceptional circumstances as the landlord would essentially be “jumping the queue” in front of other litigants.
Reducing your risk as Landlord
Whilst you can never remove all of your risk in letting premises, you can lessen this risk by doing the following:
A Clear and Detailed Lease
Ensure that you have a clear and detailed lease in place which, amongst other clauses, provides for immediate termination of the contract should the tenant default with rental obligations, and provides for all costs to be borne by a tenant should legal action be instituted.
Three Months’ Deposit
Ask for three months’ deposit from the tenant, and place these monies in an interest bearing account. This will at least give you some breathing space should the worst happen.
Monitor Rental and Utility Payments
Stay on top of all rental and utility payments made by the tenant. Whilst there should be some flexibility in allowing good tenants some latitude both to maintain good relations and to avoid litigation, arrears can quickly spiral out of control, especially given the nature and timeframe of the eviction process.
Regular Maintenance
Ensure that you fulfil your obligations as a landlord in terms of the Rental Housing Act, particularly in regard to maintenance of the property. This is the most common reason given by tenants defaulting with their rental payments.
Seek Legal Advice
Get legal advice before embarking on “informal” (read “unlawful”) methods, such as removing doors, window frames, gates and locks, cutting electricity and water to the premises, or encouraging insect infestations!
For professional and experienced litigation advice at a reasonable rate, contact Chris Salmon on 031 266 2530 or chris@fouriestott.co.za
Or complete an online enquiry and we will get in touch with you.
by Vicky | 10, 10, 18 | Uncategorized
Conveyancing Transfer Process
The Conveyancing transfer process usually takes approximately 8 – 12 weeks and the steps are as follows:
Step 1: Agreement, Suspensive Conditions & Transfer Documents
The transfer process begins with a sale agreement. Once the conveyancers receive a copy of the sale agreement, they will contact the parties and request copies of their FICA documentation, the current rates, electricity and water account numbers for the property and payment of the deposit (if applicable). Once suspensive conditions have been fulfilled (bond granted for example), the conveyancers will draft the transfer documents, arrange for signature of the transfer documents, request rates figures from the municipality and request payment of their proforma account, from the purchaser, which will include inter alia the transfer costs and transfer duty.
Step 2: Existing Bonds or Interdicts
The next step in the conveyancing transfer process is if any existing bonds are over the property, it must be cancelled (and interdicts removed) prior to or (usually) simultaneously with registration of transfer of the property to the purchaser. The seller will provide the conveyancers with the name of the bank holding the bond and the bond account number in order for the conveyancers to liaise with the bond bank in respect of settlement of the outstanding bond amount and cancellation of the bond.
Step 3: New Bond (if applicable)
The conveyancers will liaise with the bond attorneys appointed by the bank to attend to the registration of the purchaser’s bond and obtain the necessary guarantees from them. The purchaser will need to sign the bond documents in order for the guarantees to be issued. The purchaser will pay the bank’s attorneys directly for their bond registration fees.
Step 4: Rates Clearance Certificate and Transfer Duty Receipt
Once the purchaser has paid the proforma account, the conveyancers will pay the municipality’s rates figures to the municipality, transfer duty to SARS and if applicable, levies to the body corporate or homeowners’ association. SARS may require two independent estate agent valuations to verify the value of the property being transferred. The conveyancer will only know on submission of the transfer duty application whether the valuations will be required.
Step 5: Compliance Certificates (Electrical, Pest, Gas & Electric Fence as applicable)
The conveyancers must receive the necessary compliance certificates applicable to the property. Bond attorneys typically require certified copies of the certificates prior to lodgment of the transaction in the Deeds Office. It is vital that these certificates are provided to the conveyancers timeously.
Step 6: Lodgment in the Deeds Office
When all attorneys involved are ready to proceed they collaborate and lodge their respective transactions simultaneously in the Deeds Office. The examination procedure in the Deeds Office typically takes eight to ten working days if there are no backlogs or queries. If the Deeds Office queries or rejects a document then the attorney responsible will need to answer the query or rectify the error in order for all transactions to proceed.
Step 7: Registration of Transfer
On registration of transfer the purchaser becomes the official owner of the property. The conveyancers finalise the seller’s and purchaser’s accounts and once payment of the guarantee (if applicable) reflects in their trust account they process the necessary payments. The seller usually receives payment of the net proceeds of the sale of the property approximately 48 hours from date of registration of transfer, depending on banks, weekends and public holidays. The title deed will be microfilmed by the Deeds Office and returned to the conveyancers for onward transmission to the purchaser (or the new bondholder bank if a bond was required to finance the transaction).
Please contact us if you require assistance in respect of a sale agreement or the transfer of a property. Our telephone number is (031) 266 2530 or click here to complete our online enquiry form, one of our team will get right back to you.
