Shared Ownership 

Common property is owned as an undivided share. This means that no owner has particular ownership of any part of the property. However, in monetary value, the proportion of the common property owned by each owner is proportionate to the quota of their respective sections owned. This means that if an individual owner owns 50% of the property value in sectional titles, in monetary value he/she owns 50% of the common property.

The Sectional Title Deed 

The deed to the sectional title outlines the laws regarding the use of the common property. It is here that the quota system is explicitly discussed, but also simultaneously explains the disposal of the property in association with the undivided property as a single unit. Furthermore, if insurance is taken out for a sectional title property, then that insurance also covers the undivided share of the common property ‘belonging’ to the sectional title owner. This is not necessary explained in the title deed, but rather applies in every event.

Common Property Resolution 

The owners of the sectional titles may, by a unanimous vote, direct the Body Corporate to either sell or lease a portion of the common property. This is done by a property resolution, and the resolution is drafted to include any necessary information referring to the property. This is the only time that a land’s deed can be changed from that of common property to otherwise. The Body Corporate is required to reregister the land and involve a Surveyor-General to agree to the repurposing.

There are a few more intricate and complex laws regarding common property, some of which are not understood widely by the entire Body Corporate or the owners of the sectional titles. Therefore, it is important that Body Corporates hire the services of attorneys to assist them in cases regarding sectional titles, and litigated procedures that involve property. In these events, make sure that you contact Ivan Zartz Attorneys. We are always willing to help!

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A sum of its parts

A sectional title, to put it rather simply, can be either a single building, a piece of ground, or a collection of buildings on a piece of property. If and when the building or property (and attached buildings) gets divided into sections with common property, this is considered to be a sectional title. However, a sectional title is more about the trusteeship between sectional title owners or property directors than the property itself, and the relationship and decisions between members of the trustee are largely governed by law.

Sectional titles have become exceptionally important in urban South Africa, where the demand for economical housing has driven the market to develop more apartments, townhouses and complexes, all likely to be subdivided and separately owned.

Common Property 

All the owners of the individual titles or sections are invested in the co-ownership of common property. Quite simple to understand; common property is all the property within a sectional title that can be used by all owners, trustees, and tenants. The Body Corporate of the sectional title is usually responsible for the maintenance of the common property, and they are also responsible for drafting rules and regulations determining the use of common property.

As can be expected, sectional titles involve many parties, agreements, and laws. As such, there is often misunderstanding between Body Corporate members or trustees of the sectional title. Sometimes disagreements lead to legal conflicts. In such cases, it is recommended that parties make use of sectional title attorneys to assist them. Ivan Zartz Attorneys is one such practice, available to anyone who requires help with regards to sectional title law in South Africa.

If you require our assistance, don’t hesitate to contact us!

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In Community of Property

In Community of Property is an easy law to understand. It basically means that any assets that either one of the spouses owns during or before the marriage vows are made belongs to both spouses equally. This means that in the event of divorce the sum of both assets will be divided as equally as possible, while during the event of death, the living spouse will have ownership of all the marriage assets. This agreement is the most repudiating with regards to property law and the individual ownership before marriage.

Anti-nuptial Contracts and Property

An anti-nuptial contract is very different from the Community of Property rule. In the case of anti-nuptial agreements, spouses can agree to accrual or not. Accrual means that any assets made during the marriage period will be shared equally in the event of divorce. However, any property or assets owned by any one of the spouses before marriage strictly stays in that individual’s name unless agreed on the anti-nuptial contract otherwise.

Without accrual means that all property and assets, whether accumulated during the time of marriage or not, is owned by the individual in whose name the assets are in. Without accrual can be problematic in the event that the other spouse helps to pay for a particular asset, and how a particular asset is shared needs to be expressed within the contract.

With regards to property, couples must think long and hard as to their choice in marital contract. As with any agreement, we cannot predict the future, and agreements need to be made now to safeguard individuals in the case of divorce and/or death. A hasty decision may supercede the common property law in any event.

For more information regarding property law, please contact Ivan Zartz Attorneys as soon as possible. Furthermore, take a look at our blog page to peruse our latest articles.

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Sale In Execution Of An Unpaid Home Loan

When the new property owner has not paid the bond or home loan, efforts will be made to enter some sort of financial agreement with the homeowner, often in the presence of legal representatives. After multiple instances of notification, it falls on the bank to sell the house on the market through the sheriff of the court. This can only be done through a court order, a cumulation of decisions made in court, and justified by the financial capacity (or lack thereof) of the individual.

The sale of the house is usually done by an auctioneer, and the auction itself would have been advertised in both the Government Gazette as well as print media. The price at which the house is sold by the auctioneer cannot be denied by the bank, as the property is strictly not their own. Often houses are sold well below their market value due to the nature of the sale.

Legal Opposition To Sale In Execution

There have been recent cases whereby individuals and organisations have challenged the sale in execution. A recent case involved the Lawyers for Human Rights (LHR) where they challenged the courts, believing that the sale of a particular individual’s home far below the market value, as an infringement on the individual’s rights. Some properties are sold for less than the amount owed by the homeowner towards the bank loan or bond. This often means they have to pay additional fees or risk being ‘blacklisted’.

If you require more information on issues regarding property law, sectional title law or debt collection, make sure you contact Ivan Zartz Attorneys today.

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Currently, the rate of economic crime in the country doubles that of the international average, even when compared to other states in Africa. This, PricewaterhouseCoopers suggests is a ‘pandemic’, and at least a third of all upper-management in a number of corporate businesses have experienced economic crime in one form or another.

While, internationally, asset misappropriation is the most common form of economic crime, other forms of crime such as cybercrime as well as bribery are also common. Many would think that corruption is the most common economic crime in South Africa, but this is not the case. HR crime is at its worst in South Africa. More than a quarter of employees’ matric certificates cannot be confirmed, while 1 in 15 employees have a falsified tertiary degree or certification. HR crimes are usually noticed when hiring new staff, but the studies suggest that a shocking number of employees in South Africa do not have the correct qualifications.

Those in the field of risk management and auditing suggest that businesses should be proactive with regards to the crimes that plague South African companies. There are many services available on the market that can help businesses prevent fraud, and even HR crimes like that of forged qualifications.

Those of our clients that require our services with regards to commercial law must ensure that they have employed measures that help them prevent economic crimes within their businesses. It is important that they understand the scope and damage that economic crime inflicts on the South African economy, and that they protect themselves accordingly.

If you require the services of a professional commercial law attorney, then make sure you contact Ivan Zartz Attorneys as soon as possible.

Take a look at our commercial law page to see the commercial law services that we offer.

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Levies are paid by the owners of the sectional titles belonging to a scheme. Sometimes an owner is unable to pay the levies and/or pay off his/her mortgage and will then be required to sell. However, what if the sectional title is currently being rented to a tenant? There is nothing that legally prevents the owner from selling their property to another party in such an event.

In this case the new owner is made aware that there are tenants living on their property, and that the tenants have the right to stay on the property until the time that their lease agreement is up. Tenants must ensure that they find out from the new owner whether or not the owner will extend the lease or offer a new lease agreement. It is important that tenants make plans to find alternative accommodation in case the owner intends to move in himself, or if they feel they will be uncomfortable with the new agreement.

The buying of the house by the new owner doesn’t release tenants from their responsibilities either. Any changes to the lease will need to be made by the tenants and the new owners before the sale is made. Tenants are expected to continue paying the lease as normal until their contract period expires, otherwise penalties will be issued. There are no requirements that need to be fulfilled by the old owners after the point of sale.

If you’re an existing home owner or owner to a sectional title, if you’re a tenant, or if you are a head of body corporate of a sectional title, then make sure you acquire the services of a skilled and experienced debt collection and sectional title attorney. Ivan Zartz Attorneys are on hand to assist you under any circumstances. Contact us today!

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Mediation is becoming common practice in the business field. As more businesses are feeling the pinch due to the unstable economic climate (and now the most recent Chinese financial crisis), many businesses and individuals have settled with mediation as a way of dealing with negligence claims as well as negotiating expiry limitation periods. It is most commonly found between business partners as they determine to settle breaches of contract between themselves without involving the court.

Mediation is even supported and advocated by legal establishments and governments, highlighting the fact that parties are likely to save on costs if settling on agreements outside of the court. Some states are beginning to implement mediation support frameworks and organisations that will assist parties as well as attorneys in the legal mediation process. It is through such frameworks that people are encouraged to seek mediation especially in cases of family conflicts. Unfortunately, many law firms see mediation as a threat to their profit making endeavors, and are therefore not as supportive of the change in the legal paradigm.

Mediation agreements are settled through the mediator’s use of a number of mediation techniques and processes. No single mediation practice is relied on. This is especially true of a lot of the larger cases of mediation, like that between two commercial parties who live in foreign countries for example. In this case an experienced mediator will fall back on a wealth of knowledge and experience before settling on a particular process.

Some mediators become skilled in a particular field of law, such as family law or commercial law. In these instances it is best to use a specialized mediator. For instance, Ivan Zartz Attorneys has a team of mediators experienced in the art of family law. If you require a mediator to help you resolve conflicts in family or in business, then don’t hesitate. Make sure you contact Ivan Zartz Attorneys today!

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A standing minimal fee of R1500 is required for a consultation at our offices. We DO NOT provide free telephone consultations either. Telephone consultations may be made, but they will be charged accordingly.

Many clients question the charge and label it as exorbitant, but what exactly are you paying for at Ivan Zartz Attorneys?  Ivan Zartz is an industry-leading attorney, with many years of experience. His focus within matters of child custody, dispute resolution, divorce, surrogacy, debt collection and insolvency mean that his advice and council is highly regarded and well-sought. Ivan Zartz is virtually a household name in legal circles within South Africa.

You will also be paying for the services of Ivan Zartz Attorneys’ highly-capable and accomplished team. It is this team of bright and young individuals that allows Ivan Zartz to execute such quick turnaround times regarding clients’ needs. The administration team also helps ensure prompt communication with clients so that Ivan Zartz and his attorneys can continue to achieve desired results.

Please make sure that you are able to pay the required R1500 consultation fee the next time you make an inquiry toward consultation. Not only will you be saving us crucial time during office-hours, but you will be saving yourself the trouble too.

For any additional information regarding matters of child custody and/or debt collection, or if you require a debt collection attorney/child custody attorney within South Africa, contact Ivan Zartz Attorneys today!

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Liquidating a company or close corporation

Inability to pay debts

A company or close corporation is deemed unable to pay its debts if after a letter of demand has been sent to the registered office of the company or close corporation, demanding payment of the debt, (which letter must be served by the sheriff) and more than 21 days has elapsed from date that the letter has been sent and no payment or response has been received.

A company is also deemed unable to pay its debts if there is a written or oral admission by a representative of the finance credit department of the debtor that the company is unable to pay, because it has cash flow problems.

How does an inability to pay assist in the collection of levies owed by a close corporation or company?

In the first instance, if an attorney is instructed to collect debts in excess of
R50, 000.00 in respect of companies or close corporations which own a property, my suggestion is that instead of issuing a summons and wasting time in obtaining a judgment, one should proceed to send a letter of demand

to the registered office of the company or close corporation and wait for 21 days for a response.  In my experience, most directors of companies or members of close corporations do not respond to the letter and one can then commence liquidation proceedings.

Of course, one can always contact the director or member, and if the attorney is advised by the director or member that the company or corporation is unable to pay, and asks for an extension of time, then, in certain cases, particularly where the arrears are high, the oral admission by the director or member is sufficient to begin the liquidation process.

The upshot of both of these processes is that these are severe measures, which ultimately force the owner to come to an arrangement, or lose the property, since the liquidator steps into the shoes of the owner.

Again, in liquidation, the property cannot be transferred until the new purchaser pays the arrear levies and legal costs.

I have found that if one can agree a fee with one’s client for the sequestration or liquidation, one can ultimately collect the costs from the debtor, as in most cases the debtor is under pressure not to lose his property.

 Alternatively, if a trustee or liquidator sells the immovable property, the body corporate can furnish the conveyancer with the legal costs, which can be included in the conveyancer’s clearance certificate, and which costs the new purchaser must pay.

How to deal with a dilatory debtor

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The most common way of collecting levies is by way of the issue of summons.  In other words, the managing agent instructs an attorney, on behalf of a body corporate, once the account of the owner goes into arrears, to issue summons for the arrears outstanding on the unit. This method is still widely used in collecting outstanding arrears, but is beset with pitfalls of a practical and dilatory nature.

“What alternative methods of collecting levies and electricity, particularly with regard to large outstanding arrears, are available to managing agents and trustees?”

The practical difficulties with the summons procedure

Once a summons is served, it presently takes anything from two to three months to obtain a judgment, that is, if one is fortunate, by which time the owner has fallen further into arrears.
One used to be able to obtain a judgment and execute (attach) within a month.  However, particularly in the Johannesburg Magistrate’s Court, it is now becoming more difficult to obtain a judgment because of administration difficulties.  Managing agents and trustees should be mindful of this fact.

Delaying difficulties with the summons procedure

Some unscrupulous owners instruct creative attorneys to defend a summons for the purpose of delaying the payment of the arrears.  This incurs unnecessary legal costs.  The owner really does not have a defence and by the time the matter comes to court, the levies are substantial.  It should be borne in mind that presently, it can take anything up to eighteen months for a case to be heard in court.  During this period, invariably no levies or utility fees are being paid but there is a way to deal with such owners.

After judgment has been granted

Once a judgment is obtained, the next process is to attach the movable assets of the owner.

Trustees of bodies corporate should be aware that they should, at all times, be in possession of the current address of the owner.  It is no use instructing the sheriff to attach the movable goods in the unit, as often the units have been rented, and the movable property, i.e. the furniture and appliances, belong to the tenant, unless the unit is let fully furnished.

It often happens that the sheriff finds insufficient movable assets to attach at the owner’s residence. Many practitioners then proceed to instruct the sheriff to remove the goods attached and subsequently arrange for a sale in execution to take place. It is my view that this method wastes time and money in that, pending the sale of the assets, they are stored at the sheriff’s warehouse at considerable expense, which expense must be borne by the body corporate. The proceeds from the sale of the movable assets are often insufficient to cover the storage costs and removal costs, which increases the costs and claim even further.

Ivan Zartz Attorneys have their own alternative process to address this situation.  Simply apply for a consultation by using the Message Form on the right of this page.

Some attorneys bring an application to sell the owner’s immovable property. This takes time and often, by the time that the court authorises the sale, there is already a judgement against the immovable property of the bondholder.

Bondholders control the sale of the immovable property, in that they can dictate the price at which the property is to be sold. The body corporate has no say when the sheriff sells a property. Ultimately, when the bondholder has consented to the sale, the new owner will have to pay the arrears owed to the body corporate and the legal costs in full, as transfer of immovable property will not take place in the absence of a clearance certificate being issued by the managing agent.

Once again, Ivan has his own workable solution to this challenge, but you need to consult with him! 

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