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Month: January 2019

YOU CAN ATTEND TO THE REGISTRATION OF YOUR HOME OWNER’S ASSOCIATION WITH THE COMMUNITY SCHEMES OMBUD SERVICE BY YOURSELF

YOU CAN ATTEND TO THE REGISTRATION OF YOUR HOME OWNER’S ASSOCIATION WITH THE COMMUNITY SCHEMES OMBUD SERVICE BY YOURSELF

The Community Scheme Ombud Service Act 9 of 2011 and its Regulations, (“the Act”),  came into operation on 7 October 2016.

Said Act is applicable to all community schemes, which are defined in the Act as, ”any scheme or arrangement in terms of which there is shared use of a land and responsibility for parts of land and buildings, including but not limited to a sectional titles development scheme, a share block company, a home or property owner’s association, however constituted, established to administer a property development, a housing scheme for retired persons, and a housing cooperative as contemplated in the South African Co-operatives Act, 2005 (Act No. 14 of 2005) and ‘scheme’ has the same meaning”.

Thus, no matter how small the HOA that you belong to, the Act will still be applicable and registration of your HOA in terms of the Act is compulsory.

Upon commencement of the Act, a juristic person, known as the Community Schemes Ombud Service, have been established, whose main purpose is to provide a dispute resolution service, and to promote and regulate good governance of community schemes, including the implementation of organisational systems, controls and measures to enhance the efficient financial and economic management of all schemes.  Some of these measures include the lodging of annual returns at the Chief Ombud, as well as the payment of levies to the Ombud Service, by every unit within a scheme, based on a prescribed rate.

This article’s focus is however mainly directed at the process to be followed in order to register your HOA with the Ombud Service.

The Act is written in clear and concise language, and is quite easy to understand. Chapter 5 of its regulations contains prescribed forms that have to be completed and filed with the Ombud Service in order to register your HOA.

Section 18(3) of the regulations to the Act requires a community scheme, which includes a HOA, to complete and file registration Form CS 1, attached to the Act, within 30 (thirty) days after the regulation came into effect, (thus within 30 days after 7 October 2016), or on the date of incorporation of the community scheme in terms of the applicable Act.

The contents of the form require inter alia the following documentation regarding the scheme to be sent to the Chief Ombud, namely, the completion of the name of the community scheme, contact details of the scheme, names and contact details of the trustees and the authorized representative of the HOA, details of the managing agent if applicable, as well as copies of the audited financial statements of the scheme and details regarding the scheme’s financial year end. It furthermore requires copies of the Constitution and Rules applicable to the scheme, and also list additional supporting documentation that must be provided should it be applicable.  It then provides you with contact numbers and an e-mail address in order to send the completed registration form to the Chief Ombud.

As the list is quite extensive, we would advise that careful consideration is given to provide all the documentation applicable to the scheme upon application of the registration thereof, also to prevent unnecessary to and fro communication between the Ombud and the HOA, and to ensure a speedy registration of the scheme to what appears to be a rather simple procedure.

Once confirmation of registration of your HOA is received from the Ombud Service, the HOA will be liable for the payment of levies and service fees to the Chief Ombud on a quarterly basis, calculated on the prescribed formula as contained in Chapter 3 of the regulations to the Act.

Should you be uncertain how to calculate your HOA’s levies payable to the Chief Ombud, and/or wish to know more about the other obligations imposed on a HOA in terms of the Act, you are welcome to contact our offices for an appointment.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

INVESTING IN A RENTAL PROPERTY

INVESTING IN A RENTAL PROPERTY

Buying a rental property could be an incredible investment opportunity, however, it’s important to make a well-informed decision before investing, as it is not for everyone. Although investing in a rental property provides many benefits, such as a potential extra income, and a way of paying off the property, it poses certain risks as well.

The following should be considered when deciding whether or not to invest in a rental property:

  1. Calculate the upfront costs:

When you purchase a property, there are several upfront costs that would need to be paid. These include bond costs, attorney fees, bank initiation fees and transfer duty. You need to be fully financially prepared before investing in a rental property. In the case of applying for a bond, your financial circumstances will be taken into account, as a means of determining whether or not you will be able to service a loan.

  1. Calculate the ongoing costs:

After the property has been purchased, there are several ongoing costs that need to be considered. These costs include rates and taxes, insurance and maintenance.

  1. Vacant rental properties:

If your rental property is empty for a period of time, you need to ensure that you have the funds to cover the costs of your rental property. You cannot depend on your rental property generating an income 24/7.

  1. Rent:

The amount of rent you can charge your tenant per month will depend on factors such as property type, amenities, etc. This should play a vital role in your decision when buying a rental property.

  1. Rental agreement:

Before a tenant moves in, you need to ensure that you have a very strong rental agreement in place. This agreement will protect the property owner in the case of disputes and damages to the property.

  1. Taxes:

The rent that you receive from the tenant, is not meant to go straight to your pocket. Tax law states that the property owner needs to pay tax on the rent received from the tenant.

  1. Potential tenants:

When looking at potential tenants, it is of vital importance that the owner vet all potential tenants, in the form of credit checks, background checks, etc.

The above-mentioned points should be considered before investing in a rental property. As mentioned, it could be a sound investment and provide you with a potential extra income once the property has been paid off, however, if not done right, it could cost the property owner dearly, so be sure to make a well-informed decision before investing.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Choosing guardians for your minor children

Choosing guardians for your minor children

My husband and I have two minor children. I am concerned about who will look after our children in the event of my husband and I passing away at the same time. We have been advised to nominate guardians in our wills. What should I keep in mind when choosing guardians?

Choosing guardians for your children is one of the hardest and most important decisions you will ever have to make. The thought of someone other than you raising your precious children is gut-wrenching. The worst part about it? You’ll never be fully comfortable with the choice, because no one can do as good a job as you. There is no perfect choice. However difficult it may be, naming guardians is a must-do for every parent. If the thought of placing the future of your children in someone else’s hands makes you queasy, imagine leaving the decision to someone you do not like, or do not even know. That is why parents should pick legal guardians – the persons who should raise their children if both parents die before the children turn 18.

When preparing a Last Will and Testament, the emphasis is typically on the disposition of property. However, selecting guardians to care for your minor children and nominating them in your Last Will and Testament is just as, if not more important, than distributing assets. The transition to life with guardians is especially traumatic as children come to terms with new parental figures, likely following the untimely death of one or both parents. The guardians you choose will be responsible for helping to heal this wound. It is of the utmost importance to choose guardians with whom you and your kids are comfortable and who has the emotional intelligence, time and interest to raise your children.

Choosing guardians

The first hurdle in choosing guardians is finding someone who is willing to act in such an important and responsible capacity. Raising someone else’s children is not a decision potential guardians should take lightly, as assuming guardianship will change the rest of the guardians’ lives, as they step into the roles as surrogate parents. Besides finding willing persons, choosing guardians involves objective and subjective assessments different from choosing other fiduciaries such as trustees. Guardians should be reliable and stable, with sound judgment and values that are similar to your own. The guardians will need to comfort, teach and encourage your children as they grow towards adulthood. Guardians who already have a warm and loving relationship with your children would be immensely valuable in such an emotionally trying transition.

Selecting family members

Instinctively, many think the right guardians for their children are family members. However, in some cases, nonfamily members may be a better fit. Naming friends as guardians is increasingly common, though relatives are still the most popular choice. While family is frequently an obvious choice, circumstances may make this impractical or undesirable. Hopefully your children are comfortable with grandparents, or an aunt and uncle who may have similarly aged children of their own. If this is not the case, close friends with similar values, who live nearby, and who have kids of their own, may be a better option than faraway relatives. The choice is specific to your lifestyle and your relationship with your family.

Naming alternate guardians

Unfortunately, couples divorce and families break up. Choosing a couple as guardians could turn out to be problematic if they divorce or one is otherwise no longer able to serve in the role. Such a scenario could give guardianship to a person whom you are less inclined to have raise your children. If alternates are not named and the nominated guardians are unable to care for your children, the decision as to their care could end up being made by a court. As a result, it is advisable to name alternates in case the first choice is unwilling or unable to act. This way your wishes can be carried out and the paths of your children’s lives are not at the discretion of a judge.

Revisiting your choice of guardians

Once you have carefully selected the guardians and alternates and have nominated them in your Last Will and Testament, it is important to remember to revisit the choices as circumstances change. As children (and guardians) age, their needs and abilities also change. You will want to make sure that the people you selected a few years ago are still the right choice today.

Reference List:

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

THE CYBERCRIMES BILL: MALICIOUS MESSAGING OVER SOCIAL MEDIA COULD SEND YOU TO JAIL

THE CYBERCRIMES BILL: MALICIOUS MESSAGING OVER SOCIAL MEDIA COULD SEND YOU TO JAIL

South Africans will soon have to be much more careful and think twice about the messages they send over WhatsApp and other social media platforms, as the Cybercrimes Bill (“the Bill”), which was recently adopted into law and is in the process of being enacted, attempts to police malicious messaging.

Cybercrime is on the rise and the Bill essentially aims to stop these acts, to keep people safe from criminals and terrorists, to improve the security of the country and to bring South Africa in line with other countries’ cyber laws. The practical impact of the Bill on all organisations and individuals are significant and unfortunately mostly negative. It impacts all of us who process data or use a computer.

Contravening the provisions entailed in the Bill could lead to a fine or imprisonment for a period not exceeding three years, or to both a fine and imprisonment. The Bill fundamentally intends to curb the number of harmful messages, which by definition now covers a wide range of subject areas, that do the rounds on social media.

The Bill incriminates, amongst others, the following acts in particular:

  • Disrupting another’s personal details: By sharing another’s personal details online for malicious purposes, without their knowledge and/or consent.
  • Unlawful sharing of intimate images: Publishing and/or distributing another’s nude intimate images or multimedia files of an intimate nature will constitute a harmful disclosure of pornography, which the Bill seeks to regulate. The Bill describes an “intimate image” as both real and simulated messages which shows the person as nude or displays his/her genital organs or anal region. This includes instances where the person is identifiable through descriptions in a message or from other information displayed in the data message. These acts can cause extensive reputational damage to another, especially if the said person had no intention of making it public.
  • Sharing of information regarding investigations into cybercrimes: The Bill enables the Minister of Justice to make regulations on information sharing. This includes sharing information on cybersecurity incidents, detecting, preventing and investigating cybercrimes.
  • Inticing damage to property belonging to “a group of persons”: Sharing messages which encourage people to damage property belonging to a certain demographic group, could lead to an arrest simply for the incitement rather than the act. This act includes any implied threats of violence against “a group of persons”.

The Bill was first published on 28 August 2015, updated on 19 January 2017 and introduced in Parliament on 22 February 2017, where it currently still sits. There have been extensive comments on the Bill during the public participation period in 2017. These comments have been considered and incorporated and the latest version of the Bill was published on 23 October 2018. The new version of the Bill creates many new offences, some relating to data, messages, computers and networks.

The Bill has come a long way since its first publication and the overall effect of its provisions will be tested over time. Readers are, however, advised to take note of the Bill and its consequences before it is signed into law, as ignorance of the law will not be an excuse.

Reference List:

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)