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Advise Guys Please

Written by Cutie Pie from the blog Advise Guys Please on 13 May 2011
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Hi Guys

My brother met this woman in 2004. They decided that they want to get married and bought property together. Things turned sour and my bro moved out.

The Girl remained in the house and they both continued to honour their bond obligation for a while. In 2008 the gal met somone else and they stayed together in her and my bro's house. I don't know what happened, the girl stopped paying for the bond altogether.

My brother tried to pay the full amount, but after learning that she stays with another man, he got pissed off and decided to just pay his half. The arrears accumulated and the bank was obviously calling for payment. He asked the girl to move out so they can rent...she refused. He asked to sell, she refused. They even went to court, but he could not force her out of the house.

He then decided to stop paying as this was not leading him anywhere financially. Now he is in a dilemna and that is where we need your opinion bloggers

Question 1 - If this leads to judgement, after 5 years can the bank re-instate his name? Is it allowed by the new NCA?

Question 2 - How do you legally force this girl and her boyfriend out of the house? I mentioned they've been to court but I'm not sure why they could not evict her under the circumstancec?

Question 3 - Have any of you been to such similar situations? How did you get out?

He wants to move on, buy himself property etc, but with this hanging over his head its really tough....

Your advise will be highly appreciated

26 Comments

Cutie Pie
13 May 2011 08:32

Your advise is really needed bahlobo....

VusiK
13 May 2011 08:50

An article was posted in Polity.gov.za about two or three months ago ... I had a copy of it downloaded regarding this particular situation ...

It is somewhat under the heading of "The dangers and risks of cohabitting in South africa" ... or along those lines ... and is published by one of the large legal firms ....

I was going to cover this particular element of life in my cohabiting article .... I just might do that ....

There are legal remedies on this type of situation ... the new CMA will not help him ... what's his intention .... keep the house & eject her .... or walk away withhis credit intact?

Or you can just wait for my article to publish .... I am loath to cover the matter here ... and there!

VusiK
13 May 2011 09:02

... sorry

polity.org.za

not .gov.za

Cutie Pie
13 May 2011 09:07

Hi Vusi

Thanks a lot. He wants his credit to be intact still, but he refuses to pay for his ex and new BF. Quiet sticky I must say.Thanks a lot we will refer to this article.

I doubt he wants to keep the house, but should he be forced to due to this, I guess he will.

VusiK
13 May 2011 09:09

The Domestic Partnership Bill of 2008 (the “Bill”), once introduced as an Act, will regulate the legal status of people of the opposite or same sex who are in a domestic partnership, but have not yet “tied the knot”.

1. The effects of unregistered domestic partnerships (general)

1.1 Life as we know it is all about the make-ups and the break-ups of relationships and we have all witnessed (I’m sure) the problems that couples face when their relationship or the domestic partnership (which I will refer to from now onwards) comes to a sudden halt. Literally it spells d.i.s.a.s.t.e.r!

1.2 Time and again people jump right into living together without thinking of the legal consequences thereof, the importance of wills and winding up of deceased estates, or have no legal understanding of the law. Before they realise, homes, motor vehicles, and other luxury items are bought, and verbal agreements are concluded and before the partners realize the situation, one is paying off certain items, other items are only in one of the partners name (bonds etc) and unexpectedly what you thought was true, never-ending love for each other suddenly comes to a complete end due to death, mutual agreement, or your better half (well that’s what you thought at the time) literally packs their bags and heads for the hills!

1.3 Now the looming question, if the property as mentioned above is not in your name, where exactly does it leave you and how will this affect your pocket? Often, couples are so madly in love that they fail to see past the break-ups and what the future may hold. I was always warned and advised that an agreement between two lovers should be agreed to as if they you were getting divorced, or separating at that present moment in time. This would save unnecessary legal fees and of course avoid those dreaded “settlement agreements” that can never be agreed upon.

2. Domestic Partnership Bill, 2008

2.1 According, it brings me great pleasure to advise you that there is light at the end of the big, dark tunnel. The Bill was drafted to afford all partners equality before the law¹, the right to equal protection and benefit of the law . Therefore legally recognizing and protecting partners in a domestic partnership, and allowing the partners the opportunity to share in some of the rights and obligations that flow automatically from a marriage. The Bill is aimed at providing partners with certainty and greater understanding of the topic.

2.2 A look into traditions of today:

As we move towards the new and kick out the old, traditions come and go, and society’s beliefs change the word “marriage” for some brings a chill to their spine, and almost sounds somewhat archaic. However as human nature has it, we all still want what rightfully belongs to us (or what belongs to others but which we believe rightfully belongs to us!). At the end of the day we want our possessions protected.

2.3 In my view, the Bill has done just that, it provides rights and obligations to domestic partners who are not concerned with registering any form of partnership. The Bill has identified all the important and relevant aspects pertaining to unregistered domestic partnerships such as such as property division after termination of unregistered domestic partnerships either through death or suspension, maintenance after termination of the unregistered domestic partnership, as well as intestate matters (persons dying without leaving a will)².

3. DIVISION OF THE PROPERTY

3.1 The Bill provides domestic partners the rights to apply to Court on application to obtain a court order in respect of the above three aspects of unregistered partnerships.

The Court however takes into account certain factors such as the duration and the nature of the relationship, the degree of financial assistance, dependence or interdependence, arrangements regards financial support, performance of household duties, ownership and use of as well as acquisition of the property, the principles of justice, fairness and equality, and the interests of both parties as well as their individual needs depending on the facts of each individual case.

3.2 Additionally the partner applying for the court order may not at the time of the application to Court be a spouse in any civil marriage, or a partner in any civil union or be in a registered domestic partnership with a third party. Further, one of the partners in the domestic partnership is required to be a South African citizen and/or a permanent resident of South Africa. It is important to keep in mind t

VusiK
13 May 2011 09:10

I hope it answers some of the questions your brother has .... in part or in total ....

VusiK
13 May 2011 09:16

the article's link ....

http://www.polity.org.za/article/what-are-the-consequences-of-living-together-2011-02-01

VusiK
13 May 2011 09:21

... he can ... with the help of a brilliant lawyer ... extricate and liquidate his interest without penalty ... or with little penalty .... and let the ship sail or sink with the 1st officer sans the Captain ....

I suggests he gets a really good attorney .... an excellent commercial attorney who is particular specialty in the commercial exercise & excise of property law .... a brilliant and seasoned divorce attorney may be equally qualified.

VusiK
13 May 2011 09:24

You are so very welcome Cutie Pie !!!!

Y'Know I love saying that "Cutie Pie" .... my daughter's face lights up like a brand new car's headlights when I call her that ....

"Papa-ka wang-Spoila" ... she is said to brag to her friends .... "Mara wa-shapa ha-ke Ganga" .... that's my Cutie-Pie

sesikavincent
13 May 2011 09:43

@Vusi im a silent blogger but im learning a lot from you and other bloggers as well thank you guys, im copying this info and sharing with my friends hope you dont mind

VusiK
13 May 2011 09:46

sesikavincent my input is for General consumption friend ....

But honestly .... abelungu basihlula ngoba sinqena ukufunda ......

vinc
13 May 2011 09:47

Thanks Vusi, i had no idea there is such a law. It will help many of our loved ones in this situation.

I used to work with this lady, she bought a house with her partner (boy friend). As there were about to get married, the lady found out that the man was cheating on her, which he did not deny and said that he did not love her any more, so he was moving out.

Now the issue was that the house was registered in both their names but now the payments were coming off the lady's account. He refused to pay towards the house and she kept paying becoz she stayed there. When she consulted with a lawyer she got told that the only way to remove the ex's name would be by signature from him and he refused to sign. He said that he had invested a lot in that house and they had the house for 8/9 years. so the lady continued leaving in the house for about 3 to 4 years and still paying. Now the man came back and said that they can sell the house and split half, but now the lady refused to move the children and also the fact that the man wasnt paying for all these years.

sesikavincent
13 May 2011 09:57

true

GML
13 May 2011 10:16

My advise in addition to Vusi's advise is that your brother go to the bank (if the debit is running from his account) and request a suspension of the bond for a few months.

This will give your brother a bit of time to sort this matter out with his lawyers whilst not paying the bond.

Once the matter is resolved the account/bond will then be handed over to the girlfriend and her BF.

If the account/bond is not running from your brothers account then I suggest he try to speak to her GF and propose they request the suspension together if she will agree.

Then go ahead with Vusi's advise.

VusiK
13 May 2011 10:17

There is absolutely no substitute for an excellent attorney ....

and

There is no excuse for using a brilliant attorney ....

in court .... only the best argument prevails .... being right or wrong / guilty or innocent is irrelevant ... even if one is caught red handed!

I only use the absolute best in everything ... I will only use someone who lives and breathes the concentration I wish to have represented .... I don't care about referrals to so & so's brother or cousin who just happens to be a lawyer ....

The brilliant ones cost a fortune ... but not ridiculously expensive either .... Do your research and target to retain the one you are most comfortable with .... (that's the one who actually listens more than talks .... and asks probing questions you will not be comfortable with as background & orientation) .... those types of attorneys are perhaps 0.01% of the total attorney pools ... finding them is difficult .... getting their attention even more difficult.

VusiK
13 May 2011 10:20

in addition to GML's suggestion ...

He can also get all the arrears to be transferred for their account ....

alternatively .....

He can assume the responsibility for the arrears and evict them .... which may have huge satisfaction on his part ....

If the house is not upside-down financially ... he may still be able to make a profit .... walking away results in loss ....

GML
13 May 2011 10:34

Vusi- He will need permission to transfer the arrears into their/her account.

Remember it's a joint bond (I assume) and therefore both parties should be present unless the main contributor is the Brother, in which case he can do anything if the money comes from his account

VusiK
13 May 2011 10:44

@GML ... her withholding permission provides him the opportunity to have her accept responsibility for her obligations ....

He can then dissociate himself if she accepts ....

or voluntarily liquidate his interest in the holding .... and force sell .... there are laws that allow this .

VusiK
13 May 2011 10:47

this can all be solved in a hurry via a document of cession from either party to the other ....

It depends on who wishes out more desperately than the other ....

The problem is the arrears, and recovery of value / equity invested... if that is a factor.

GML
13 May 2011 10:47

Yes there are and all costly to him. And I thought the main point was to avoid the costs related to the house.

I think Vusi- that we need to first know if he is the main contributor (the debit is from his account)

GML
13 May 2011 10:52

Vusi- The girl clearly doesnt want out. And if the guy has any legal documentation to evict them from the house then I see no reason for him not to proceed selling the house. He has the law on his side.

Also there is a new law imposed on banks regarding evictions- I'm not sre if it applies to individuals as well though

VusiK
13 May 2011 10:57

From what I gather ... He is now the principal contributor .... she has in essence abandoned her obligations but enjoying the benefits .... (as well as some brand new ... off the factory floor ... d*ck!) .... not in my space ....

Some of my exes live on my properties (Children's stability & developmental issues) .... Our deal is simple ... when she gets a man ... she moves out! (I do find out much sooner than later ... Resourceful I am .... and they know better than to break any line of any contract I enter into .... I am extremely brutal & unforgiving when someone tries to take advantage of anything about me)

At least with me being of some modest means ... I can afford large luxury ... some people cannot.

VusiK
13 May 2011 10:59

The new law does apply to individuals as well .... and it is so welcome!

If only this law could incorporate a Quick-Claim Deed ... I'd return to the commercial retail investment environment in a hurry!

khabzette
13 May 2011 11:14

ooooh this is some seriously interesting stuff! thnx vusik et al for the valuable info. cutie pie,eish hope it works fo yo bro. uthando nemali madoda! yhuu!

realist
13 May 2011 11:16

@GML ... her withholding permission provides him the opportunity to have her accept responsibility for her obligations ....

I concur with the above.
He should instruct his attorney to have her accept that fact and if not then she should carry the whole bond herself.

Like Vusik has said: Find the best attorney and his problem can be resolved without him being black listed.

He can then dissociate himself if she accepts ....
From the above article I don’t think she would accept on her own without being threatened by an attorney.

The other option is to go those who sell up market property and seek advice on how he could get out of this mess. They may suggest the best attorneys that he can talk to.

Btw, he must not tell them about his problem but rather an option of purchasing a property jointly and seeking advice on how to go about it if things don’t work out if one did not draw a contract.

babye
13 May 2011 11:17

Vusi - kindly refer to the blog you sent regarding cheating i posted something there and require you opinion.

you just mentioned that its hard for someone to change and i am going through a very interesting chapter in my life

kindly