1-Editor's-Letter

EDITOR’S LETTER


Dear Reader

We hope you all enjoy the month of love!

In this edition we will discuss the principle of “huur gaat voor koop” and what you should know about it before you buy property. We are also taking a look at naming your child something funky, what other countries have to say about this, and how your child can rid himself from the embarrassment of the name he did not choose and has to live with every day.

Enjoy the read!
JJR Inc. Team

choose-your-weapon-01

HUUR GAAT VOOR KOOP


– Nadia Burger

What exactly does this expression mean? Simply put, it means that a tenant’s legal rights, in terms of a lease agreement, are stronger than any rights of a third party which vested after the commencement of the lease agreement, for example an offer to purchase a property entered into whilst a lease agreement is in place. (Lease trumps sale)

In practice, we are often faced with very difficult situations arising from existing lease agreements and a subsequent sale of the property to a purchaser. In a situation like this, it is very important to note that the tenant has a right to remain in occupation of the property until expiration of the lease agreement, irrespective of the fact that the property has been sold and there is a new owner. The new owner will “step into the shoes” of the landlord (the seller of the property) and the purchaser will take over the lease agreement and will be entitled to the rental income deriving from the leased property.

The problem comes in where the existing lease agreement has not been disclosed to the purchaser in the agreement of sale. In situations like this the tenants’ rights in terms of the expression “huur gaat voor koop” comes into force and the tenant may remain in occupation of the property even though the offer to purchase between the seller and the purchaser states that occupation will be handed to the purchaser on date of registration. Understandably this leaves the purchaser in quite a predicament as he is now not allowed to occupy the property. In these instances, should the seller not be able to perform and give occupation to the purchaser as per the agreement of sale, the seller will be in breach of contract and the purchaser will have a right to claim damages from te seller, for example, re-location costs, storage costs and rental costs.

To avoid a problematic situation, ensure the following:

1. Establish whether the agreement of sale is subject to a lease agreement;
2. The purchaser can request a copy of the lease agreement from the seller;
3. If there is no disclosure of a lease agreement by a seller, the purchaser can request the seller for an indemnification in the agreement of sale for the existence of a lease agreement.

Non-disclosure of an existing lease agreement in an agreement of sale, to a purchaser, can lead to a costly and unnecessary exercise for the seller.

YOU NAMED YOUR CHILD THAT?


– Karolien van Wyk

South Africa is truly the land of the free. As a citizen you enjoy the freedom to name your child whatever your heart desires. Surprisingly, there are countries in the world that quite strictly regulate the name you pass on to your offspring. There is even a country that has a list of pre-approved names that you have to choose from.

In Sweden you are prohibited from naming your child anything that will be offensive to the reasonable person and it should also be a suitable first name. Should you wish to later change your name, one of the original names will have to be kept and you only have one opportunity to change it. In New Zealand offensive names are also prohibited as well as unreasonably long names. Metallica, Superman and Veranda were some of the names rejected in Sweden, Fish and Chips and Satan were rejected in New Zealand.

Luckily Gwyneth Paltrow is not German or she might not have been able to name her firstborn child Apple. In Germany, a name will be rejected if it might negatively affect the well-being of the child or is a name of an object or product. Denmark has a list of about 7 000 pre-approved names. If you choose one of the names and spell it too creatively it may also be rejected. Should you wish to deviate from the list of names, one needs to obtain special permission from your local church and then governmental officials will review your choice. Further criteria is that the name has to indicate the gender of the child.

Should you, as a South African, not be happy with your first name or surname the Births and Deaths Registration Act1, read with the Identification Act2 provides for the rectification and amendment thereof.

In accordance with section 24 of the Births and Deaths Registration Act (hereinafter “the Act”) one can alter one’s forename by applying to the Director-General of Home Affairs (hereinafter “the Director-General”) by completing the prescribed form3. This can be done at your local Home Affairs office.

Section 25 regulates the altering of a minor’s surname. The Act provides for certain situations namely:

1. The mother of a child born out of wedlock marries a person other than the biological father may change the child’s surname to that of her husband;

2. The mother may change the child’s surname to her maiden surname or any surname she previously legally bore after the divorce from or death of her husband. Should she have been remarried, she can change the child’s name to that of her husband;

3. When the child is registered under the biological father’s name and was born out of wedlock the mother may change its surname to hers;

4. When a child is in the care of a guardian, the guardian may change the child’s surname to theirs;

5. Any other situation not mentioned but good and sufficient reasons for the change must exist.

Home Affairs provides that the following requirements be adhered to when an application for the above is lodged:

1. The correct form must be completed4;

2. Good and sufficient reason for the change in writing as well as the written consent of both natural parents must be attached;

3. The consent of the natural father of a child born out of wedlock in writing, unless waived by a competent court must be attached;

4. The written consent of the assumption by mother of the child’s husband must be attached.

Section 26 of the Act regulates the assumption of a different surname by an individual. The Act provides for a woman to assume her husband’s surname or create a double-barreled surname by joining her and her husband’s surnames. Furthermore, she may also revert back to any surname she previously bore legally which includes her maiden surname. The Act does not stipulate that an application to Home Affairs must be made in these instances, but it is advisable to notify same in order for the Population Register to be updated.

Should a major desire to assume a different surname in any other instance, application should be made to the Director-General on the prescribed form5. Good and sufficient reasoning should be attached to the application. Once the assumption has been approved, same must be published in the Government Gazette. An application in this regards must be lodged at your local Home Affairs office.

Therefore, as a South African citizen you are in the fortunate position to name your child whatever your heart desires. And if you are the offspring of such a parent, you have the opportunity to change your name to something more appropriate.

1 Act No. 51 of 1992

2 Act No. 68 of 1997

3 Form BI-85

4 Form BI-193

5 Form BI-196

4-dont-let-your-dreams-be-only-dreams

This newsletter 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.

About the author

Leave a Reply