Penalty for early cancellation of a residential lease

What rights does a landlord have if a tenant cancels the residential lease, before it ends?

The tenant has the right to cancel the lease at any time (on 20 business days’ notice) in terms of the Consumer Protection Act (subject to payment of a reasonable penalty) for premature cancellation. But what is such a reasonable penalty or cancellation fee?

To determine a reasonable cancellation fee, the CPA prescribes a list of factors which must be taken into consideration. These factors include, among others:

·         the rental amount which the tenant stills owes the landlord up to the date of cancellation;

·         the value of the lease transaction up to the date of cancellation;

·         the duration of the lease agreement as initially agreed upon by the parties;

·         losses suffered or benefits accrued by tenant because of the tenant entering into the lease agreement;

·         the length of notice of cancellation provided by the tenant;

·         the reasonable potential of the landlord, acting diligently, to find an alternative tenant between the time of receiving the cancellation notice and the time of the cancellation;

·         and any general practices relating to the relevant industry.

These provisions are not intended to penalise the tenant, but to recover any actual loss suffered by the landlord because of the cancellation. The following costs could apply:

§  Credit check costs for any prospective replacement tenants (even those who are not accepted);

§  Advertising costs (only the actual amounts on the invoices);

§  Rental – the exact number of days that the unit remains vacant after the tenant vacates.

Forms of marriage in South Africa

In South Africa, there are several ways of getting married, depending on religion, custom or tradition.

South Africans choose to get married in terms of customary law, religious rites, or in a civil or church marriage.

Customary Marriages

·         The Recognition of Customary Marriages Act 120 of 1998 gives recognition to customary marriages which are concluded in terms of the customs and traditions observed among the indigenous people of South Africa.

·         The legal requirements for a customary marriage are that the prospective spouses must both be above the age of 18 years, must both consent to be married to each other under customary law and the marriage must be negotiated and celebrated in accordance with customary law.

·         Where a spouse is not a partner in any other existing customary marriage, and where the parties have not concluded an antenuptial contract, the marriage is regarded as being in community of property and of profit and loss.

·         If husband wishes to conclude a further customary marriage, he must apply to the Court to approve a written contract which will regulate the future property rights of all parties concerned.

·         Spouses in a customary marriage may conclude a civil marriage in terms of the Marriages Act of 1961, but only if neither of them is a spouse in an existing customary marriage.

Civil Marriages

·         The Marriages Act 25 of 1961 governs the civil unions between spouses.

·         The Act requires that the parties be married by a licensed Marriage Officer, who registers the marriage at Home Affairs.

·         The Matrimonial Property Act 88 of 1984, deals with matrimonial property law, such as antenuptial marriage contracts that govern the matrimonial property regime of the parties (marriages out of community of property, with or without the accrual system).

·         The accrual system shall automatically apply unless specifically excluded in terms of the antenuptial contract.

·         If the parties did not conclude an antenuptial contract, then the marriage is automatically in community of property.

Marriage by Hindu Rites

·         There is no automatic legal recognition of Hindu marriages in terms of The Marriages Act. Instead, a marriage by Hindu rites is governed by the tenets of the Hindu faith and not by civil law.

·         If the parties wish to be bound by South African civil law, they must formally get married by a person who is registered in terms of the Marriages Act and who may perform a civil marriage in tandem with the customary marriage, and issue the parties with a marriage certificate in terms of the Marriage Act.

·         If the parties are married by Hindu rites, but no civil marriage is registered, then they are not married in the eyes of South African law.

Marriage by Muslim Rites

·         Similarly, parties married by Islamic or Muslim rites are regarded as unmarried.

·         However, by registering a marriage in terms of the Marriages Act, spouses can obtain recognition and regulate the proprietary consequences of their marriage.

·         The role of the (Imaam/ Alim) Muslim cleric, if he is an authorised marriage officer, is to solemnise the marriage in terms of the Marriage Act, after the (Nikah) Islamic marriage ceremony. He must thereafter register the marriage formally with the Department of Home Affairs.

Civil Unions and Civil Partnerships

·         The Civil Unions Act 17 of 2006 regulates the solemnization of civil unions, either by way of a marriage or a civil partnership.

·         Same-sex couples now enjoy the status and benefits, and the responsibilities, that marriage gives opposite-sex couples.

·         A person may only be a partner or spouse in one marriage or civil partnership at any given time and whilst in a civil union, may not conclude a marriage under the Marriages Act or the Recognition of Customary Marriages Act.

·         A civil union is one in community of property unless the partners concluded a prior antenuptial contract.

If I am married in community of property, what can I leave in my will?

A client asked: What are the implications when folks get married in community of property after a property was purchased in any one’s name, draw up a will and one passes away?

If a couple get married in community of property, they share equally in the assets and liabilities of their joint estate (whether acquired or incurred before or during the marriage).

So, if the husband owned a property before the marriage, on death or divorce, the wife becomes entitled to half the net value of the joint estate (i.e. half of all their combined assets less all its joint liabilities).

What that means is that a spouse can only leave his or her half share of the joint estate, in a will. If a will says “I leave my estate to my mother”, “my estate” means his or her net half of the joint estate.

When is a grandparent liable to maintain a grandchild?

A grandparents’ duty to support their grandchild.

These are the legal principles:

·         Both parents are jointly obliged to support their child on his birth. This common-law obligation is called the ‘the parental duty’ to support children, proportionately to their respective means. In other words, the parent that earns more, would pay more child maintenance;

·         The duty exists, irrespective of whether a child is born in or out of wedlock or is born of a first or subsequent marriage;

·         A parent’s duty to support ends when the child becomes self-supporting (even if the child becomes a major), dies or marries;

·         If parents are not able to support their children, the duty to support falls on paternal and maternal grandparents. The support is based on the child’s needs and the grandparents’ ability to pay;

·         Paternal grandparents have a duty of support towards a grandchild despite the child being born out of wedlock;

·         When a parent dies, his or her obligation to support the child will not cease, but will lie against the estate of the deceased parent;

·         Where there are not enough funds in the deceased parent’s estate to provide for the child’s support, the duty to support will fall upon the child’s maternal and paternal grandparents, jointly;

·         If the spouse cannot support his wife, her parents may be called on to support her, but they have a right to recover their maintenance from the spouse;

·         The duty to support may also cease if the child is ‘guilty of a cause of ingratitude towards him from whom he desires maintenance such that he could even be justly disinherited on account of it’. This still must be ruled upon by our courts.

Where is your will?

My uncle, just turned 95, invited me to his death rehearsal. Morbid, but practical.

He showed me where he has stored his will, title deed to his property, bank information, etc.

He even has a list of people to invite to his funeral (names and addresses)!

When you are young, you are immortal. Drawing up a will is conceding that you are going to die, so avoid it, right? Wrong!

See your bank or lawyer to prepare your will. If you are living together but not married, conclude a life partnership (or cohabitation) agreement.

To prepare for your death, I advise you to:

·         Put together a box file containing all your important documents, and tell your nearest and dearest, where it is. In this box file, store your will, marriage contract, insurance policies, title deeds, papers for cars, caravans and boats, timeshare information. and other important papers;

·         List your creditors (credit card, loans, mortgages, store accounts, etc.);

·         List important numbers for your heirs, such as the name of your broker, lawyer, doctor, dentist, financial advisor, etc.;

·         Leave a list of family and friends, to contact on your death;

·         List what happens to your DSTV, armed response, personal and home insurance, etc.;

·         Describe where you want to be buried or cremated, and your funeral wishes, in general;

·         List codes for your security system, and where to find keys for your safe deposit box, post office box, etc.; 

·         List all your virtual accounts, user names and passwords (ranging from email accounts to your social networking profiles) and retain these passwords, with other valuables, in a safety deposit box, to be revealed to your executors, only on your death.

·         Instruct your executors whether to keep your social media sites current or delete them. You may, for example, want your executors to notify your friends or connections of your passing, and to keep the sites open, as a memorial. If you decide to memorialize your accounts, Twitter and Facebook will shut down your account, but your executors can set the privacy so that only confirmed family and friends can see the profile and leave posts on the profile Wall, in remembrance.