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Unlawful Occupiers: When Can't You Evict Them?
What To Do If You Missed The Turnover Tax Registration Deadline
Sub-Leases And The Landlord's Veto
Querying A Municipal Account? Your Rights
Apartheid And Minor Criminal Convictions Expunged
Mutton Dressed Up As Lamb!
The July Website: What's Lurking On Your Hard Drive?
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| JULY 2009 |
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UNLAWFUL OCCUPIERS: WHEN CAN'T YOU EVICT THEM?
Before you buy any property with occupants in or on it - - Establish the basis of their occupation - take advice upfront to be sure that you can evict them in need, and
- Factor into your cash flow projection a safety margin for holding costs, sufficient to cover delays whilst you follow eviction procedures.
In terms of PIE (the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act), once an unlawful occupier has been in place for over 6 months, a court may order eviction only "if it is of opinion that it is just and equitable to do so after considering all the relevant circumstances". At best, the procedure is complex and time-consuming.
Now the Constitutional Court has held that a local municipality must find alternative accommodation for unlawful occupiers before their eviction from State land can be effected. Earlier judgments confirm that this procedure applies equally to privately-owned land. That means delay - possibly substantial - for owners and developers, whilst they wait for the local authority to comply with its constitutional obligations.
There might also be an even greater danger than mere delay. In some circumstances you could end up buying a property lumbered with an unlawful occupier whom you just cannot evict at all. That's exactly what happened in a recent High Court case, where the Court ruled in favour of a long time occupier of a house who, although an "unlawful occupier", was in essence the innocent victim of a series of bungles by previous owners.
The eventual owners were held to be at least partly to blame for their own misfortune, the Court commenting: "I cannot believe that they decided to buy the property without physically inspecting the property. They must also have realised that somebody was occupying the property. They should have made the necessary enquiries" (the occupant thought, with some reason, that she was the owner of the property - and would doubtless have made that clear to the buyer if only she had been asked!).
If there's an occupant or occupants in place, do your homework before you buy!
WHAT TO DO IF YOU MISSED THE TURNOVER TAX REGISTRATION DEADLINE
If your small business has a turnover of no more than R1 million, it may qualify to change to the greatly simplified "all-in-one" Turnover Tax system, but take advice first - you may be better off with the current system!
What if you want to change, but have missed the deadline (30 April 2009)? The good news is that you can still migrate to the turnover system, although it will only be effective from the next tax period.
If you are starting a new business, you must register within two months from the "date of commencement of business activities".
SUB-LEASES AND THE LANDLORD'S VETO
One of the risks of renting premises is the possibility of unforeseen circumstances arising that make it necessary (or perhaps just advantageous) for you to vacate before the end of the lease.
To protect the tenant in such a case, leases commonly allow the tenant to sub-let the premises, but, to in turn protect the landlord, this should only be possible with the landlord's specific written consent.
If you are a tenant, check that the landlord cannot withhold such consent "unreasonably" - otherwise the landlord effectively has carte blanche to refuse.
Landlords thus constrained need to understand what will be considered "reasonable" grounds for refusing consent, and what will be considered unreasonable. The starting point is that the law views the reason for the landlord's right of veto as being "to protect the lessor from having his premises used or occupied in an undesirable manner or by an undesirable sub-lessee." Thus, held the High Court in a recent case, the landlord's reason will generally be unreasonable if it does not relate either to -- The sub-tenant, or
- The "proposed use or occupation of the premises".
In the case in question, the landlord refused to consent to a night club sub-leasing premises in its shopping centre. The Court held that the landlord was obliged to consider whether the club could be accommodated "without prejudicially affecting the rights of the other tenants and its obligations towards those tenants". The landlord was found to have acted reasonably in refusing consent on the basis of probable impacts on parking availability, noise levels, unruly behaviour etc.
Note that a "sub-lease" should not be confused with an outright cession of the lease to a new tenant. With a sub-lease, the tenant remains just that - the tenant - and therefore remains fully liable for compliance with the original lease. With a cession, the original tenant falls out of the picture, being replaced by the new tenant. Take advice if it isn't clear which option suits you best.
QUERYING A MUNICIPAL ACCOUNT? YOUR RIGHTS
If you dispute a municipal account (be it rates, electricity, water, sewerage or anything else), you are of course entitled to a full breakdown of the account so that you can check for yourself that the account has been correctly calculated.
In addition, held the High Court recently, you are entitled to inspect the source documents underlying the account (a source document, held the Court, being "a tax invoice or any document of prime entry no matter what label it carries").
If you have difficulty in getting what you need from the municipality, seek legal assistance - the Court in this instance ordered that the applicant be allowed to inspect all source documents, and clearly would also have ordered the production of original invoices if that had not been rendered impossible by a technical failure in the municipality's billing system.
APARTHEID AND MINOR CRIMINAL CONVICTIONS EXPUNGED
New legislation provides for the expungement of criminal records for two types of conviction: -- Convictions under "apartheid" legislation (such as the Group Areas Act, Prohibition of Mixed Marriages Act, Internal Security Act, any offence based on race, etc etc - wide definitions apply), and
- "Minor" (determined by type of sentence) offences, but only after 10 years from date of conviction. Excluded are -
- Certain sexual and other offences involving children and mentally disabled people, and
- Offenders who have subsequently committed an offence and been sentenced to imprisonment (or in some cases, an offence for which a sentence of imprisonment exceeding 6 months could have been imposed).
Certain records are supposed to be automatically expunged (but check that this has in fact happened!), whilst others require formal application.
MUTTON DRESSED UP AS LAMB!
The Code of Advertising Practice prohibits "misleading claims" in advertising, whether by "any statement or visual presentation", and whether "directly or by omission, ambiguity, or exaggerated claim".
It seems however that the point can be stretched on occasion - the Advertising Standards Authority Directorate in a recent ruling dismissed a complaint against a processed meat product packaged as "Lamb Stew" although - as was disclosed on the contents panel - the product occasionally contains mutton as well as lamb. (Note that this ruling doesn't allow your friendly neighbourhood restaurant to serve you mutton when you ordered lamb - the fact that the stew in question was a prepared and packaged product rather than a fresh one seems to have been critical to the ruling!).
Buyer Beware! Read the small print on the contents panel.
THE JULY WEBSITE: WHAT'S LURKING ON YOUR HARD DRIVE?
What's clogging up your computer? What's lurking around in the dark and dingy recesses of your hard drive?
Find out with SpaceMonger. Its power lies in the old adage "a picture's worth a thousand words" - it produces a colour-coded chart that shows exactly what is sitting on your hard drive, where it is, and what size each bit of it is.
Choose between the commercial version and the free one -- The commercial version (v2.1.1) is available on a 30-day free trial - go to the Sixty-Five Software Inc "Download" page at www.sixty-five.cc/download. If you want more information before downloading it, go to the "Products" page at www.sixty-five.cc/sm, or
- The free version (v1.4) is available in the "Products" section at www.sixty-five.cc/sm/v1x.php. It's fine for most purposes, but if you've test-driven the commercial version you may decide to pay for the extra features.
Enjoy July (And if Winter isn't your favourite season, remember Shelley: "Can Spring be far behind?")
Note: Copyright in this publication and its contents vests in LawDotNews(law.news)
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