Co-owing your house

 

A client asked what she should do about a house she and her life partner bought together. There is a bond over the property, and they are separating.

They own the property 50-50 and are jointly liable to the mortgagee. The rationale for buying the property in the first place in their joint names was to share the burden of bond repayments and maintenance costs.

We advised her to agree in writing with her partner to record their respective rights and obligations on what will happen with the property when they separate. 

In an ideal world, couples should enter into a co-ownership agreement before they buy the property, recording such things as: 

• Their ownership proportions (if not 50-50)
• How much will each contribute to the bond and property maintenance (if not equally)
• What will happen if the parties go their separate ways (will they sell, or will one party stay in the property and buy the other one out)
• What happens if one party dies or becomes unable to keep up their payments to the partnership expenses

 

 

Noise nuisance and religion

 

When does the Islamic ‘Call to Prayer’ constitute a noise nuisance?

 

The SCA in Madrasah Taleemuddeen Islamic Institute v Ellaurie [2022] ZASCA 160 at [11]-[19] heard that Ellaurie lived about 200 metres from the Madrasah in Isipingo Beach, where there is a mosque. The KZN Court found that the five daily Azaan calls, delivered by a Muadhin, reminding people of the Islamic faith to pray, invaded Ellaurie’s personal space and ordered that the Azaan should not be audible within the buildings on Mr Ellaurie’s property. 

The SCA disagreed with this finding and set aside the order. 

Its rationale was that limited interference with property rights and enjoyment by owners of other properties in the same neighbourhood is expected and acceptable in law. Mutual tolerance is a civic value restricted by the legal yardstick of reasonableness. Mr Ellaurie placed himself within the realm of a unique or extraordinarily sensitive complainant. The reasonableness of the Azaan could not be judged by his standards, the essence of which was a deep aversion to the Islamic faith. It had to be judged by the standard of an ordinary person living in Isipingo Beach. 

The SCA emphasised that the Constitution provides protection for different religious beliefs and affiliations and guarantees the freedom to observe and manifest different religious beliefs. In this case, the reasonableness assessment had to consider and balance the countervailing constitutional rights. There was no room for these considerations in Mr Ellaurie’s convictions. His motivation for pursuing litigation was not the advancement of constitutional justice but rather his dislike of Islam.