Security Estates: Are Your Rules Enforceable?

Legal
“It is well established that contractual provisions are against public policy ‘… if there is a probability that unconscionable, immoral or illegal conduct will result from the implementation of the provisions according to the tenor’” (extract from judgment below) When you choose to buy into a security estate or other community scheme, you will invariably become a member of a Home Owners Association (HOA), a Body Corporate or the like, and you will be bound to comply with all its constitution, rules and/or regulations. It is essential to check that you are happy with them all before you buy because our courts have often confirmed that you will be held to whatever you agree to. But there are limits, as a recent High Court judgment of Singh and Another v Mount…
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Don’t Lose Your Claim to Prescription – Know the Law!

Legal
Most of us know how important it is to sue our debtors well before prescription permanently takes away our right to claim. But what if you did nothing until it was too late because you didn’t even know you had a claim in the first place?  As a recent Constitutional Court illustrates, the answer depends on what the nature of your ignorance in this regard is. A damages claim for unlawful arrest An illiterate resident of a rural area was arrested and detained by police for four or five days. He only became aware that his arrest had been unlawful years later when discussing the matter with his neighbour (an attorney). When he then sued the Minister of Police for R350,000 in damages, the Minister raised the defence of prescription.…
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Trustees: Your Risk of Personal Liability in Property Sales

Legal
Firstly, a warning to anyone selling or buying property to/from a trust - have your lawyer check upfront that you are adequately protected by the terms of the sale agreement. The problem is that contracting with trusts has its own specific set of rules and, as a recent High Court case of Goldex 16 (Pty) Ltd v Capper NO and Others (24218/2013) [2017] ZAGPJHC 305 illustrates, standard sale agreements don’t always provide adequately for them. A seller sues an unauthorised trustee for R2m - personally A company sold a “real right of extension” (a right to build additional buildings in a sectional title development) to a trust, The agreement of sale was signed by only one of two trustees, The sale agreement was invalid because the trustee who signed had no…
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