Wednesday, 23 September 2009

Landlord Comes Up With A Surprise

Hello Mr Darroll

Jackie Cameron here from Realestateweb. We're wondering whether you would like to comment on a reader question for our regular Realestateweb mailbox article?

Here is the question:

I have just moved into a garden cottage and do not have a written lease agreement with my landlord. After taking occupancy, I was advised by the landlord that planting up & maintaining the garden was my responsibility, as well as watering of the garden and the cost of the watering (I pay extra for water every month and have to use the tap in my cottage to water the plants). Does this sound like something that the landlord can insist upon, as I was under the impression that the interior of the cottage was my responsibility and the exterior was his? (Note: the garden I am “responsible” for is a small, fenced-off section around the front of the cottage).


Dear Jackie, Here is the answer to your reader’s question:

The terms and conditions of your lease are contained in the agreement between you and your landlord which would have been entered into before you took occupation of the premises. It is undesirable to have a verbal agreement as the terms and conditions of the lease then depend on what you and the landlord respectively consider to be such terms and not on a written contract where the terms are stated and cannot be disputed (unless they are ambiguous). In terms of section 5(2) of the Rental Housing Act 50 of 1999, your landlord must, if you ask him, reduce the lease to writing. This should ideally have been done before you moved in. If you try to do this now, chances are that he will include a provision that you are responsible for the garden.

With things as they are at present, the landlord may not unilaterally impose additional terms on you after the terms and conditions of the lease have been agreed to. The landlord may not therefore insist that you water the garden and pay the cost of doing so.

The principle that you are responsible for the interior of the cottage and the landlord responsible for the exterior is a general one that is usually included in written contracts. There is an obligation on the landlord to make the leased property available in a condition reasonably fit for the purpose for which it is being let. The landlord can specifically contract out of maintaining the property or specify that the tenant is responsible for paying levies or taxes as additional charges. However if the contract is silent on these matters it is the landlord's responsibility to maintain the property and pay the taxes.

Monday, 24 August 2009

Small firms are viable - Letter of the Month - De Rebus April 2009

Small firms are viable

As a proud and viable sole practitioner I am outraged at the sweeping and arrogant generalisation of the title given to the news article in 2009 (Jan/Feb) DR 18: ‘Small firms no longer a viable option’.

How could anyone in his right mind make such a gloriously ridiculous assertion?

I looked in vain for any such assertion in the article itself. What I found were a number of practitioners who listed the disadvantages of practising as a one-person firm.

Some of the disadvantages mentioned were:

‘Losing work to Justice Centres’: I have any number of clients who are perfectly free to use the Justice Centres but prefer to use the services of a practising attorney because they perceive the latter to be in general more effective. I would like to see some concrete evidence to demonstrate that Justice Centres ‘get most of the work that could otherwise have been handled by a smaller firm’. More likely, they get most of the work that would otherwise not have been handled by anybody.

‘Clients moving away because of disgruntlement’: What an outrageous statement! Is there any evidence to show that more clients move away from small firms because of disgruntlement than they do from big firms? This allegation is totally and gratuitously unjustified.

‘Always under pressure due to carrying all the expenses’: Of course the larger firms have the advantage of being able to share many costs, but the cost of running an effective legal research facility, more than adequate for my needs, by no means puts me under pressure. I have a better equipped library than I have seen in many a larger firm and the cost of maintaining it certainly does not put me under pressure.

A one-man practitioner ‘has to look after everything’: Exactly – that’s what makes it so easy. He has his finger on the pulse because it is his own pulse, without any number of nooks and crannies in the structure where inefficiencies and unacceptable practices may lurk.

‘Professional development is limited’ – what nonsense! It is just as much, if not more, open to sole practitioners to attend seminars, explore uncharted legal territories via publications and the Internet, etc than to any modular partner in a larger firm bustling away in his little specialist legal cubicle.

He is ‘always trying to catch up’ – this statement is amazing in its pomposity and presumptuousness. Who is Louis Rood of Fairbridges to apply this breathtaking generalisation to every sole practitioner in the country? According to Hortors, he is the senior partner in a firm, the Cape Town office of which alone has about 20 partners. Of course he never tries to catch up. And how he presumes to know that only sole practitioners try to catch up, I’m not quite sure. Methinks that all effective and successful practitioners are busy ‘catching up’, because if they have caught up, it means they do not have any work to do.

‘Delivery can be patchy’ – where does he get this from? I have an endless stream of clients who have left larger firms in utter disillusionment not only with their patchy delivery but also with the extraordinary amounts they charge for it.

‘You do not bill properly’ – and why not? What is stopping one, simply because he is a sole practitioner, from billing properly? Another preposterous and arbitrary statement.

There is ‘no time to market your firm’: How much time does it take to market one’s firm? Ten minutes or quarter of an hour to place one’s details on a relevant Internet website repeated five times or so is as much marketing as I need because if I had more I would have too much.

As for clients ‘moving to bigger firms’, this is a pipe dream. It would be interesting to have objective figures on the relative interflow between large and small firms but, in the absence of those, the allegation made is akin to fiction.

Oh dear, oh dear: We one-man bands get sick, we go to funerals, we go on holiday. So? We make the necessary arrangements and get on with it. Let the secretary run the office. Get in a locum. What is the problem? Where is the strain?
There is more, but what has been mentioned is more than enough. Come on you negative old pessimists! It seems amazing to me that a panel discussion on the nature of individual practitioners versus big law firms at the Cape Law Society’s annual general meeting, appears only to have had a single participant making a positive observation about sole practitioners – and that accompanied by gloom and doom. Little mention of the joy of being one’s own master instead of locked into a private sector version of the civil service; the satisfaction of always dealing personally with one’s clients instead of fobbing them off to some underling; the fun of being nimble, swift, sometimes a little creatively unorthodox; the enjoyment of informality and relaxed if intense productivity – ah dear big firm colleagues, you do not know what you are missing. On second thoughts, perhaps you do. Is envy the reason for all the dark and miserable comment?

Roland Darroll,

attorney, Cape Town

Sunday, 23 August 2009

reckless, superficial and irresponsible advice

Roland Darroll BA.LLB (UCT) BA (Psych) (UNISA) Tax Cert (UCT)
Si parla Italiano. Entitled to appear in the High Court
In association with Ince Wood & Raubenheimer,
Attorneys, Notaries & Conveyancers, Cape Town

Dear Robert

Your “rough guide” [Sunday Times “Money” 23 August 2009, page 16] was alarmingly rough:

1. “Customary marriages are deemed to be in community of property unless couples draw up an ante-nuptial contract.” Section 1 of The Recognition of Customary Marriages Act 120 of 1998 defines a “customary marriage” as a marriage concluded in accordance with customary law, ie the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples. This has nothing to do with the choice of matrimonial property regimes under the South African common law. Customary marriage has concepts such as the kraal (household); the kraalhead; the payment of ikhazi, the ubulunga beast and so on. It applies only to the tribal facet of our common society’s diamond. It is also polygamous in that a husband in a customary marriage is able to have more than one wife. It is not legally possible for a party contemplating a customary marriage to enter into an ante-nuptial contract because its matrimonial property regime is predetermined. It certainly is not possible for a customary marriage to be “deemed to be in community of property” as you allege. The matrimonial property regime that applies to customary marriages provides that the kraalhead is the sole owner of the “household property” as a whole, while the wife concerned has “full status and capacity” on the basis of equality with her husband in relation to her own “house property” only. I doubt whether you were addressing yourself to that audience. Few of them would be reading the Sunday Times.

2. “Bonds are registered in the names of both spouses, so cannot be bought or sold without consent.” Bonds as such cannot be bought or sold at all. A bond is security over property belonging to the debtor for money which he has borrowed from the bondholder, entitling the latter to have a secured claim against the proceeds of the sale of such property should the amount of the loan not be repaid. It is the underlying property that is bought and sold. A bond is then registered against that property in favour of the person or entity that has granted a loan to the owner of the property.

3. “Community of property complicates divorce”. Why ? Just because a divorcing party delays regularising the provisions of the divorce order, which you cite as an example ? This is a very narrow and unusual circumstance. In a community of property divorce the net assets of the joint estate are simply split down the middle with each party taking their own half. There are therefore normally no complications whatsoever.

4. ”... widows starving while waiting for their late husband's estate to be wound up”. This can occur just as easily in a community of property marriage or one without accrual where the survivor has no significant assets.

5. “ANC with accrual means that while assets owned before marriage remain separate, wealth acquired through joint effort after the marriage is pooled.” Wrong. In a with-accrual marriage, wealth is acquired by each of the parties separately both before and after the marriage. There is no change in the patrimonial marriage relationship between the parties to the marriage before as opposed to after the marriage. This is because the accrual only comes into effect once the marriage has come to an end. Only then, and not when “wealth is acquired through joint effort after the marriage”, is such wealth pooled and divided.

6. The accrual system “will be a problem should the first-dying spouse have the larger estate. The accrual claim will then be a liability in the estate and the accrual claim will be paid out ... before any bequests and inheritances.” Why should this be a problem ? It is in fact an advantage to the surviving spouse because, as you rightly state, payment of liabilities are generally made before those of bequests and inheritances.

7. “If you are planning to get divorced at the time of marriage...” Come again ? Can you possibly be serious? I know we are pretty cynical about marriage these days but I didn't realise that anyone could be planning to get divorced at the time of marriage.

8. “ANC without accrual is probably the way to go.” This is a crassly simplistic view. The accrual system has been carefully sculpted and introduced into our contemporary marriage law in order to gain the benefit of the separate estates regime during the marriage combined with what is in effect a community of property situation at its end. It allows maximum freedom to both parties to act in their own financial interests during the marriage. It also offers a great benefit to the spouse (generally the wife) who has sacrificed her financial earning capacity for a period in the interests of supporting her husband and bearing and caring for their children. Should the parties go their different ways, she is at least entitled to a significant share of the increase in his estate while she was busy caring for his offspring and providing a nest for himself and his family being therefore unable to increase hers.

ANC without accrual is probably the best way to go for middle-aged couples who have already built up substantial financial estates in their own right. Younger couples just starting out should consider the accrual alternative.

I hope that, from the above, you will realise that the reckless and superficial advice and analysis that you have offered to your readers is irresponsible to say the least. You owe them both an apology and a clarification.

Best wishes

Roland Darroll
Darrolls Attorneys

Member No. 10772

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