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Neighbour Trouble: Storm Water Floods
"Forced Sale" Valuations Not Enough To Prove Insolvency
Suing To Enforce A Credit Agreement? Deliver The NCA Notice Correctly!
Stolen Cars And "Owner's Risk"
Compromising A Claim? Don't Rely On A "Full And Final Settlement" Cheque
Developers: Give Yourself Enough Time For Extensions
Municipalities - Word Your Service Agreements With Care!
The February Website: Free, Instant Online Translations (Now Also In Afrikaans)
Bonus Websites: The Sporting Life
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| FEBRUARY 2010 |
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NEIGHBOUR TROUBLE: STORM WATER FLOODS
What do you do when - every time it rains - storm water floods down from your neighbour's property onto yours? Is it your responsibility to pipe the water away, or must your neighbour deal with it?
In the absence of a specific servitude entitling your neighbour to dump his water onto you, your first port of call must be the local municipal regulations. These differ from one local authority to another - so you must check what applies in your particular area - but as a general principle, they will probably provide for something along these lines: - - All owners must discharge their storm water onto a public street wherever practicable;
- Only where that is impractical, must you accept water from a higher property (in which event, you can probably recover from your neighbour the cost of any necessary drain or pipeline);
- Alternatively, some municipalities have carte blanche to give directions as they see fit to private owners, e.g. to direct you to allow your neighbour to construct a drain over your property.
Whilst the general rule in our common law is that water has to be accepted by a lower-lying property from a higher-lying property, a recent Supreme Court of Appeal decision demonstrates that - at least in heavily-developed urban areas - this rule will seldom have any practical application. This is because of one very important proviso, namely that you are only obliged to accept the "natural flow" of water. You do not have to accept any increased flow (nor any "concentration" of the flow) resulting from development of the higher property, i.e. landscaping, erection of buildings, paved areas, walls etc.
Critically, the Court held that the onus is on the owner of the higher property to prove what constitutes the "natural flow" of the water, and in practice this is likely to be an impossibly complex task. As the Court commented, "determination of the 'natural flow' in the urban context is rendered virtually impossible by the very establishment of a modern urban township".
So (unless we are talking about a flow of water that demonstrably existed on the property in its "natural state"), the problem is probably your neighbour's - ask him/her to deal with it, and get legal assistance if that fails.
"FORCED SALE" VALUATIONS NOT ENOUGH TO PROVE INSOLVENCY
Sequestrating a debtor's estate is a legitimate - and often powerful - method of debt-collection.
But, held the High Court recently, in proving that a debtor is factually insolvent, you cannot rely on a "forced sale" valuation of the debtor's assets - they must be shown at "fair market value". Make sure that your valuer is briefed accordingly, or your application will fail!
SUING TO ENFORCE A CREDIT AGREEMENT? DELIVER THE NCA NOTICE CORRECTLY!
Before taking legal action to enforce any credit agreement, you must deliver to the consumer a notice in terms of the National Credit Act drawing the consumer's attention to the default, and proposing that he/she refer the credit agreement for arbitration, counselling etc.
Several recent cases show how critical it is to comply strictly with the Act's requirements for delivery of this notice. In summary, if the notice is delivered to an address chosen by the consumer, the delivery is considered valid - whether or not the consumer actually received it. Thus in a recent High Court case, where a consumer had chosen an address to which there was no mail delivery service, posting by registered post to that address was - despite the lack of mail service - still held by the Court to constitute valid delivery.
If on the other hand you deliver the notice to an address not chosen by the consumer, "there would not be compliance with the requirements of the section unless it is proved that the consumer has actually received the notice".
And since proving actual receipt will often be difficult, if not impossible, you need to ensure: -- That the consumer, when obtaining credit, chooses a domicilium citandi et executandi (a fancy Latin term for the address where legal notices and summonses are to be served in need), and
- That you deliver the notice to that address (via of course one of the allowable methods of delivery).
As a consumer on the other hand, make a big note of all agreements in which you have chosen a service address; and an even bigger note to advise all creditors in writing (keep proof of delivery) whenever you change address.
STOLEN CARS AND "OWNER'S RISK"
Your car is stolen after you leave it at a vehicle service centre for repair.
"It's your fault my car was stolen", you tell the repairer, "So pay me out please".
"No way!" replies the repairer. "Look over there at that notice on the wall: 'Vehicles Are Left At Owner's Risk'. The loss is yours."
"But I didn't see that notice when I left the car with you, and no one drew my attention to it" you retort.
"Tough" says the repairer. "Sue me".
So you sue him - who's going to win?
Unfortunately not you, as the Supreme Court of Appeal has recently confirmed, if the service centre "acted sufficiently reasonably in bringing to the attention of its customers in general, and to [you] in particular, the existence of the owner's risk notice". Whether or not you actually saw the notice is irrelevant, provided it wasn't "located in a misleading manner".
The Court cleared the service centre of all liability after finding that notices had been "prominently displayed, in clear and unambiguous terms, on notice boards at the respondent's passenger vehicle office, at the entrance to the reception and at the cashier's window".
COMPROMISING A CLAIM? DON'T RELY ON A "FULL AND FINAL SETTLEMENT" CHEQUE
You dispute the amount of a claim made against you, and hand the creditor a cheque (for the lesser amount which you are prepared to pay), endorsed "in full and final settlement". You may think that, if the creditor accepts and deposits your cheque, the matter is now settled, and that there is no further claim against you.
But a recent High Court judgment illustrates the danger of trying to compromise a claim in this way - in that case, there were two disputed contracts between the parties, and the debtor was unable to prove that his offer of compromise was in respect of both contracts.
Our law requires that an offer of compromise be "strictly interpreted". It must be "clear and unambiguous" to be valid. As a result, making a compromise offer in "full and final settlement" may not be enough - the only truly safe option is to have your attorney make or deliver the payment for you, under cover of a properly-worded letter.
DEVELOPERS: GIVE YOURSELF ENOUGH TIME FOR EXTENSIONS
A developer who reserves the right to extend a sectional title scheme must, at the time of registering that right, stipulate the period for which he requires it to complete the extensions. Thereafter any lapsed rights transfer to the Body Corporate.
It is vital to choose a period that will give you enough time - the Supreme Court of Appeal has held recently that no court has any power to extend the period for you. You are stuck with whatever time you originally elected to give yourself!
MUNICIPALITIES - WORD YOUR SERVICE AGREEMENTS WITH CARE!
Municipalities, you need to react swiftly to a recent High Court case that has fired a warning shot across your bows - the effectiveness of your whole debt collection process is at stake.
If your municipal service agreements are incorrectly worded, the "NCA" (National Credit Act) will apply when you try to enforce payment for services supplied. If that happens, it will significantly complicate - and delay - your debt collection processes.
Note that rates claims are exempted from the most onerous provisions of the NCA, and the same will apply to properly-formulated service agreements. The onus however is on you to prove such exemption, so take advice now on whether your agreements will pass muster.
THE FEBRUARY WEBSITE: FREE, INSTANT ONLINE TRANSLATIONS (NOW ALSO IN AFRIKAANS)
You need product information from a website written entirely in Chinese, or you have received an important e-mail in Italian. Must you wait (and pay for) a professional translation?
Not in the Internet Age. "Google-translate" at http://translate.google.com provides a real-time, powerful language translation service for text, documents and websites.
The site currently supports 51 languages, from "A" to "Y": Afrikaans (newly arrived on the list) to Yiddish - via French, German, Irish, Latvian, Russian, Swahili, Vietnamese etc, etc.
The accuracy of the latest online translation services is amazing - but not of course to be relied on for any more than getting the gist of the document!
BONUS WEBSITES: THE SPORTING LIFE
"Sport is a world-changing field. It lifts lives, powers economies, stops countries and forges nations" (Saatchi & Saatchi CEO Kevin Roberts).
Have a great February - and don't forget ♥Valentine's Day♥ on the 14th!
Note: Copyright in this publication and its contents vests in LawDotNews(law.news)
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