Follow these three simple steps to ensure that you don’t just leave behind assets, but also a lasting and valuable legacy –

1. Firstly, leave a valid and updated will (“Last Will and Testament”). It’s the core and the foundation of your plan to protect the people you care for.
2. Next, address the financial and practical aspects. Will each of your loved ones have enough to support them? Will there be enough cash in your estate to ride out the inevitable delays in winding it up? Are children and any other vulnerable family members protected? Have you taken advice on setting up trusts? Do you have enough life insurance in place? Have you left a full “Important Information File” to help your executor and your family take control of and finalise your estate?
3. Now go one step further – don’t just leave an estate, leave a legacy. Read “How to Preserve Your Life’s Lessons for Future Generations” on Mission Wealth for ideas on how to share a meaningful “Legacy Letter” with your family. Follow the links in that article to “Leaving a Legacy” and “The New Way to Leave a Lasting Legacy”.

Ref >> lawdotnews

The new Code has replaced the old “Code of Good Practice for the Handling of Sexual Harassment Cases in the Workplace”. It is much wider in every way possible because it “… is intended to address the prevention, elimination, and management of all forms of harassment that pervade the workplace” (extract from the Code, emphasis added).

Of necessity, what is laid out below is no more than an overview of an extremely complex topic so in any doubt seek professional advice specific to your circumstances!

In a nutshell…

There’s a lot more detail below, but in essence –

• The Code applies to all employers, employees, and workplaces (office-based or remote)
• Its reach is extremely wide in prohibiting any and all forms of workplace harassment
• Employers have a raft of duties to comply with in relation to assessing workplace risks of harassment, and in formulating and applying procedures to prevent and deal with it
• Failure to comply risks substantial liability.

Who does the Code apply to?

In a nutshell, it applies to pretty much everyone involved in any business with one or more employees, the Code making it clear to start with that all employers and employees, in both the formal and informal sectors, are included.

Specifically mentioned as possible perpetrators and victims of harassment, in addition to employers and employees, are owners, managers, supervisors, job seekers and job applicants, persons in training including interns, apprentices and persons on learnerships, volunteers, clients and customers, suppliers, contractors, and (the very wide catch-all at the end) “others having dealings with a business”.

When and where does it apply?

It applies virtually everywhere, including remote and out-of-office situations – “in any situation in which the employee is working, or which is related to their work”, including the workplace itself (widely defined), “work-related trips, travel, training, events, or social activities”, “work-related communications, including those enabled by information and communication technologies and internet based platforms”, employer provided accommodation and transport, and “in the case of employees who work virtually from their homes, or any place other than the employer’s premises, the location where they are working constitutes the workplace.”

What must you as an employer do about it?

In broad terms you must –

• Take proactive and remedial steps to prevent all forms of harassment in the workplace
• Conduct an assessment of the risk of harassment that employees are exposed to while performing their duties (emphasized as this is probably the best place to start!)
• Apply an attitude of zero tolerance towards harassment
• Create and maintain a working environment in which the dignity of employees is respected
• Create and maintain a climate in the workplace in which employees who raise complaints about harassment will not feel that their grievances are ignored or trivialized, or fear reprisals
• Adopt a harassment policy, which should take cognisance of and be guided by the provisions of the Code
• Develop clear procedures to deal with harassment, which should enable the resolution of problems in a gender sensitive, confidential, efficient, and effective manner.

If you don’t tick all of those boxes, you risk substantial liability not only under our employment laws but also under the general principles of “vicarious liability” in the form of liability for any employee misconduct causing harm to others.

What is “harassment”?

The following extract from the Code gives an idea of just how broad the general definitions of harassment are –

What is “sexual harassment”?

Again, the definitions here are extremely wide and include any form of unwanted conduct of a sexual nature including physical, verbal, or nonverbal conduct, whether expressed directly or indirectly.

Specific examples that seem to have attracted the most media attention include sexual innuendos, comments with sexual overtones, sex related jokes, whistling of a sexual nature, sexually explicit texts, and “unwelcome gestures”, but there are many more.

What about “racial, ethnic or social origin harassment”?

Again, the definitions are wide here, including the concept that “Racial harassment is unwanted conduct which can be persistent or a single incident that is harmful, demeaning, humiliating or creates a hostile or intimidating environment” and illustrated by this extract from the Code –

Bottom line: If you think something could possibly be classified as “workplace harassment”, it almost certainly will be!

Ref >> lawdotnews

These penalties can be steep, and the Supreme Court of Appeal (SCA) has now held that they can be imposed without the municipality first having to change the property’s category on its valuation roll to “illegal or unauthorised” use. All it has to prove is that it acted in terms of a lawful rates policy.

The house whose rates bill quadrupled

• A house valued (on the municipality’s valuation roll) at R1,650,000 had its monthly rates bill quadrupled from R898-01 to R3,592-05.
• The municipality took this step after notifying the owners of their “wrongful and unlawful use of the property as a student commune, in contravention of the town planning scheme and zoning thereof without the necessary authorisation.” Authorisation was necessary, said the municipality, because the commune was a “commercial concern”.
• This after the owners had let out two of their five bedrooms to “students or young professionals” and had continued to do so despite two years’ worth of notices from the municipality to terminate the unlawful use, and despite a High Court interdict against the continued contravention.
• The legal challenge mounted by the property owners against the penalties was based on a series of legal arguments, and the Court’s analysis thereof (on appeal from the High Court) will be of great interest to property professionals.
• For property owners however, the practical punchline is that the SCA upheld the penalty charges, and the owners must pay them.

If your neighbour breaches land use laws…

That punchline is also important for neighbours, because in practice unlawful land usage of this nature will often only come to a municipality’s notice when a concerned neighbour blows the whistle.

So, if you think your neighbour is about to open up an unauthorised office, commercial or other non-permitted operation next door, and if you can’t settle the matter peaceably over a cup of neighbourly coffee, call in professional help immediately. Just the threat of a quadrupled rates bill could be enough to make the problem go away.

Different strokes for different municipalities

Property owner or neighbour, find out what your local authority’s land use and rates policies are. This particular case related to the City of Johannesburg Metropolitan Municipality, and your local municipality will have its own land use bye-laws, which could well be less or more restrictive than Joburg’s.

Check the zoning before you buy property

Perhaps the property owners in this case planned all along to let out rooms, and perhaps that extra income is what put this particular house within their financial reach. If so, the mistake they made was in not checking the local zoning upfront.

Knowing the zoning and building restrictions in your chosen area is also vital if you want to avoid unpleasant surprises, like a new neighbour opening up a guesthouse or building a triple story which cuts off your sea views. Ask your lawyer to check for you before you offer.

Ref >> lawdotnews

It has major ramifications for everyone involved in the property industry, but in this article we’ll concentrate only on aspects of particular importance to property sellers and buyers, and to landlords and tenants.

The PPA’s full definition of “property practitioner” is long and complex with some grey areas still to be clarified, but for our purposes let’s just note that estate agents and agencies, property auctioneers, property managers, bond originators and the like all fall into the definition.

We turn now to some of the more important changes which will impact on you from a practical perspective from 1 February –

New mandatory disclosures by sellers and landlords

It has always been best practice for sellers and landlords to make full written disclosures of any property defects or deficiencies known to them to prospective sellers and tenants, and to attach a list to the agreement of sale/lease. As regards residential leases, the Rental Housing Act already provides for both incoming and outgoing joint inspections.

Now for both sale and leasing the PPA provides that no PP can accept a mandate without a “mandatory disclosure form” which must be provided to any prospective buyer or tenant, signed by both parties and attached to the sale agreement/lease. The form published in the new Regulations refers to sellers only so it is unclear (at date of writing) what form landlords are supposed to use but the form requires sellers to answer a series of questions (and certify the answers as correct) relating to defects (structural and other), to disclose any boundary line disputes/encroachments/encumbrances, to certify that the necessary consents and permits were obtained for any additions/improvements etc, and to disclose any historical structure/heritage site issues. There is also a catch-all “Additional Information” section.

The form specifically states that it is not a substitute for any inspections or warranties so buyers/tenants should still insist on these in their agreements, but it does provide proof of any disclosure or non-disclosure of defects or deficiencies (there is a presumption against disclosure if no form is supplied).

Sellers and landlords will want to tread with care here and, importantly, they are not the only ones at risk of being sued here – a buyer/tenant can hold the PP liable for not complying with these requirements. 

When commission isn’t payable (and can be clawed back if already paid)

Commission is normally payable to a PP by the seller in a sale, or by the landlord in a letting arrangement. The PPA provides for two situations in which a PP cannot earn commission or any other payment, and in which you can claim repayment (on pain of prosecution for failure to repay) if you have already made payment –

• Estate agents have always had to hold a Fidelity Fund Certificate (FFC) in order to trade, and the PPA clarifies that in order to act as a PP, it is not enough for just the agency itself to hold an FFC – FFCs must also be held by all employed PPs and (if the agency is not a sole proprietorship) also all directors (if a company), members (if a close corporation), trustees (if a trust) and partners (if a partnership). Another safeguard is that the conveyancer handling the transfer is now obliged to obtain a certified copy of the PP’s FFC before making any commission or other payment.
• Another situation in which a PP cannot claim commission is if there is any breach of the requirement not to “enter into any arrangement, formally or informally, whereby a consumer is obliged or encouraged to use a particular service provider including an attorney to render any service or ancillary services in respect of any transaction of which that property practitioner was the effective cause.” This is presumably an attempt to curb the paying of referral fees to PPs for recommending or requiring use of a particular service provider, such as perhaps a particular transferring attorney, bond originator, compliance certification service etc, but at the end of the day as a seller or landlord your best interests are served if you insist on using your own professional advisors – the choice is yours and yours alone.

Other things to know about 

• The Property Practitioners Regulatory Authority (“PPRA”) which replaces the Estate Agency Affairs Board, will enforce a Code of Conduct applicable to all PPs, and will provide mediation and adjudication services in the event of any disputes arising.
• As regards costs of documentation – sale agreements, leases and mandatory disclosure forms “must be drafted by the developer or seller, as the case may be, for his, her or its own account” (there is no specific mention of landlords)

*Article supplied by LawDotNews

*Please note as with all property transactions, seeking professional advice and assistance is imperative.

Director, Palesa Seema unpacks the steps you need to take to assure that all your assets are taken care of.

To listen to the interview click the link below.

https://echocast.fabrik.fm/XzxPw3GMY3Wpy2

Read more:

1. What Happens To My Digital Assets When I Die?

When you come down to the details, it certainly is important to get everything right, but a simple, broad overview to start with will go a long way to de-mystifying the process and to set you safely onto the right path.  

Have a look at the Law Society of South Africa’s “Buying or Selling a House: What You Need to Know.” Download it in any of four languages here.  

The guide is clearly written and full of important information and advice, both practical and legal – take the time to read it in depth!  

Turning now to a few of the other more common questions you will no doubt have…

2. Do I really need legal advice?    

The danger of not having legal advice is that many pitfalls await the unwary, and you will be held to anything you agree to. The sensible thing to do is take advice early – well before you appoint an agent, start looking for a house, or get involved in submitting offers and negotiating sale agreements.  

Not having your “offer to purchase” or “agreement of sale” legally checked is a recipe for disaster. Once you sign on the dotted line, you are on the hook for everything in the document. With minimal exceptions, our law holds you to your signature, and it is no good saying later, “But I didn’t read the document, it all looked like the normal standard stuff” or “I had no idea I agreed to term x or condition y” – tough, you are bound.  

Bottom line – chat to your attorney before you do anything else! 

3. Whose name/s should I put the property in?

Should you buy the house in your name or your spouse’s name? Should you buy jointly? Does it matter what marital regime applies to your marriage? What if you are in a permanent cohabitation arrangement rather than a formal marriage? Or perhaps you wonder whether you should put the house into the name of a company or family trust.

Your choice now will have far-reaching legal, tax, and practical consequences, and with some complex areas of law involved, specialist upfront advice is a no-brainer. 

4. What else should I ask my attorney?

Common areas of dispute and litigation include “bond clauses” and “72-hour clauses” in sale agreements, confusion over the need to identify or disclose both visible and invisible defects, disagreements over what is a “fixture” that comes with the house and what isn’t, misunderstandings over neighbours’ rights to build and encroach on views and the like, not checking for building plans and municipal Certificates of Occupancy (you will have a problem if a previous owner built or extended without proper plans), not checking the zoning and title deed restrictions (which could put a damper on any plans you have to extend, go up a storey, build a home office, or the like), servitudes or other rights of use over the property, limited “home business” options and so on.

(Tip: Take lots of “before and after” photos of the house and property with your cell phone – a dated picture is hard to argue with!)

Other “homework” items to ask about – what paperwork you will need (do you know where your title deed is?), how long your particular transfer is likely to take (and a linked question “what date of occupation should we agree on?”), to whom must deposits and any occupational rental be paid (and who gets paid the interest earned on monies held in trust), what compliance certificates you need, how to find the best bond rates, whether you might qualify for a FLISP (Finance Linked Individual Subsidy Program) subsidy, how to cancel and open municipal service accounts, the rights of any occupiers (not just tenants, also “unlawful occupiers”), and so on – you will have your own list.

5. What about planning my finances?

Ask your lawyer for a breakdown of who will pay what and when. Think deposits, bond and transfer costs, transfer duty, agent’s commission, bond settlement balances, and so on. Cash flow forecasting, and a clear understanding of the timelines involved, are critical here to avoid unpleasant surprises down the line.

As a buyer, factor into your “affordability budget” not only bond repayments and your projected regular monthly costs (rates, services, insurance premiums, security costs, etc.) but also an emergency fund to cover any unexpected costs that may crop up. 

On the subject of finances, cyber-fraud is a growing issue in electronic communications and payments, so agree with your lawyer on measures to ensure that neither of you falls victim. Fraudulent “here are my new bank account details” emails are flavour of the month, but the scams are constantly evolving.  

6. Should I buy-to-let in the current market?   

Buying-to-let can be an excellent investment channel. For a whole host of reasons, this time of pandemic and disruption has opened up an abundance of opportunities to prospective landlords. Just don’t rush in blind – choose the right property in the right area, go into the process with your eyes fully open, and in particular, beware of the common pitfall of failing to minimise your risk of having to fight a difficult, destructive or non-paying tenant. Residential property occupiers enjoy strong protections against eviction even in normal times, and these protections are even stronger for the duration of the National State of Disaster. 

It is also essential to understand the impact of the Rental Housing Act on the landlord/tenant relationship – do you know the specific requirements around rental deposits and joint property inspections? “Ignorance of the law” is no excuse, and non-compliance could cost you dearly.  

7. Who appoints the conveyancer, and why do I need one?   

In a nutshell, you need to appoint a specialist lawyer (a “conveyancer”) to pass the transfer of ownership from the seller to the buyer in the Deeds Office. That’s because only on registration of the transfer does the buyer become the property’s legal owner.  

As a seller, insist on choosing the conveyancer – pick a firm you can trust to act with professionalism, integrity, and speed.   

8. What about buying into a complex?  

Owning a house and living in a community scheme comes with substantial benefits; understand exactly what you are letting yourself in for both on a practical level, and regarding the various rules and regulations you will agree to.  

Our courts regularly have to sort out bitter (and unnecessary) disputes around owners desperately – and almost always unsuccessfully – trying to get out of complying with body corporate and Home Owners Association rules. Common complaint areas are home businesses, pet ownership and control, vehicle parking, noise, nuisance objections, and the like.   

9. What records and paperwork should I keep?   

One thing is certain – the document you don’t keep on file is the one you will be desperately searching for in 10 or 20 years! So when in doubt about a particular item, keep it, but at the very least have a file (backed up electronically) with –

• Your title deed (also called a “deed of transfer”) from the conveyancer. If your property is bonded, the bank will keep the original, in which event keep a copy plus a note as to which bank has the original. If you lose your title deed, you can get a copy, but there are delays and costs attached, which you really want to avoid when you come to sell again down the line.
• The full signed agreement of sale and annexures. The conveyancer’s final statement of account and associated invoices.
•  All bank loan and bond documents.
• Your municipal Certificate of Occupancy if you undertake any building work (construction, renovations, extensions, etc.).
• A running list with supporting documents of all tax-relevant expenses. For example, keep a running Capital Gains Tax schedule with –
•  A list of expenses is relevant to the house’s “base cost” (purchase price, transfer costs, legal fees, bond costs, agent’s commission, costs related to the sale or purchase like advertising, architect’s fees, etc.) 
• Ongoing capital expenses, i.e., improvements and renovations (but not repairs or maintenance).  
• “Before and after” photos of the house and property.
• Ask your lawyer if there is anything else you should keep relevant to your particular property and transfer. 

Article courtesy of LawDotNews

Read more:

1. Life Partners: A Will And An Agreement

The High Court’s pronouncement that the relevant legislation was unconstitutional and invalid in this regard must still be confirmed by the Constitutional Court, but it certainly is a clear indication that our courts want to see our laws amended to protect the rights of such couples.

The life partner who will now inherit

• An unmarried 57-year-old man died leaving substantial assets. Both the executor of his deceased estate and the Master of the High Court rejected, primarily on the basis of existing law, his surviving (female) partner’s claim to inherit from the estate.
• She approached the High Court with her claim, and the Court found on the facts that the couple had been “partners in a permanent opposite-sex life partnership, with the same or similar characteristics as a marriage, in which they had undertaken reciprocal duties of support”.
• The provisions of the Intestate Succession Act and the Maintenance of Surviving Spouses Act were, held the Court, unconstitutional to the extent that they excluded opposite-sex permanent life partners from their provisions.
• The practical effect is that the surviving partner will inherit as though she was a spouse.

But, if you are in an opposite-sex life partnership –

1. You should still make a will
There’s no guarantee that the Constitutional Court will confirm the declaration of invalidity.  There are very sound reasons for everyone – married or not – to leave behind a valid and properly-drafted will.

It is quite possibly the most important document you will ever sign. Without a will, you lose your right to choose who inherits what (your spouse for example will get only a “child’s share” on intestacy).  You have no say in who will be appointed as the executor of your deceased estate. And you risk exposing your surviving loved ones to the trauma and expense of family dispute and litigation.

In the context of life partners, perhaps you want your surviving partner to inherit everything, or perhaps you don’t. The only way to ensure your desired outcome is to specifically provide for it in your will.

2. You should still have a cohabitation agreement
An enduring myth in our society is that our law recognises the concept of a “common law marriage”. There is no such thing in South African law and whilst there are some limited statutory protections for life partners, if and when you part ways you could well find yourselves embroiled in a prolonged and bitter dispute. Quite possibly one of you will be left destitute after many years of “living as man and wife”.

The quick and easy solution is to enter into a cohabitation agreement, it’s the best way to safeguard both of your rights (personal as well as financial).

Jack Crook

© LawDotNews

Read more:

1. Is My Will Valid?
2. What Happens To My Digital Assets When I Die?

These six easy steps courtesy of Private Property will help you on your journey to becoming a homeowner.

The Road Map

If left unchecked, it could result in devastating consequences.

Traditionally, locating asset details is easy.

A deceased estate usually consists of various monetary assets such as bank accounts, immovable property, vehicles, insurance policies, etc.  Ideally, all the essential details of these assets would be in a file kept in a safe place.   The executor or family member can quickly locate it and wind up the estate.

Nowadays, digital assets abound with monetary and sentimental value.

Times have changed, and most people choose to store important information in a digital format.  Digital assets include email accounts, social media platforms (Facebook, Instagram, LinkedIn), blog posts, photo and music sharing accounts, and even online purchases.

This poses a difficulty for the executor in winding up the estate.  In the worst-case scenario, the assets may hold a monetary value and may never be located and therefore lost forever.  Although digital photo albums may not translate into monetary value, the sentimental value is significant.  Losing such could be devastating.

Your Digital Estate Plan

You can prevent this from happening by creating a Digital Estate Plan and ensuring accessibility to accounts upon your death to close them.

Draft a legal document, such as a Last Will and Testament or a Letter of Wishes.  This document will ensure that your intentions in this regard are carried out.

Questions to consider for your digital assets

Essential questions to ask yourself when planning your Digital Estate Plan include the following:

• Who is to manage and have control over your digital estate? (Make sure that this ‘digital executor’ is technologically savvy and has the right skills in this regard.)
• How are they accessing passwords after death?
• What is to happen to the digital estate? (For instance, are digital accounts to be closed and digital devices cleared of their contents?  Should printouts of accounts be given to particular people?)
• Who is to receive the digital estate, and in what form?

To prevent your digital information from disappearing forever, it is important to be proactive and ensure that it devolves according to your digital estate plan.

It is advisable to get assistance from an experienced attorney to assist you in taking care of your digital and physical assets. Our team can help you with drawing up your Last Will and Testament and a Letter of Wishes.

Contact us today info@stupelberman.co.za

Read more:

1. I’m Selling My Property, Can I Choose My Conveyancer?
2. Is My Will Valid?