Assistance with your home loan application

Exciting new benefit announcement!

All Legal Hero policyholders now enjoy assistance with their home loan/ bond application process. Contact 0861 22 99 22 (option 4) or e-mail bond@legalhero.co.za. We want to see you and your family thrive.

When it comes to property (movable and immovable), your Legal Hero benefits include purchase and sale agreements, advice on agreements before you sign, consumer protection, lease agreements, bond application assistance and discount on transfer and registration fees.

Keeping you informed: Have you heard of FLISP?

What is it? The Finance Linked Individual Subsidy Program (FLISP) was developed by the Department of Human Settlements and is a form of subsidy.

What does it do? FLISP helps successful applicants to purchase his/ her first property in a formal town by way of a once-off subsidy in the region of R10 000 - R87 000.

Do I qualify? If you are a first time home buyer, a South African citizen over 18 years, have never benefited from a Government Housing Subsidy Scheme (such as an RDP house, for example) and earn between R3 501 and R15 000 per month, you are eligible to apply. Your potential FLISP subsidy depends on your household's combined monthly income.

Contact details: NHFC 0860 011 011 or flisp@nhf.co.za. Visit www.nhfc.co.za for more information.

How do I clear listings from my credit report?

Here at Head Office we all do some credit ‘spring cleaning’ right after the annual budget speech. Everybody requests a copy of his/ her credit record from TransUnion/ Experian and then scrutinizes the document in order to avoid any nasty surprises. 

Did you know that potential creditors are obliged to check your credit record for any listings prior to approving your loan? A listing could then lead to the rejection of your application.

Ranked from least to most serious, there is a chance that you might spot one or more of the following listings on your credit record: payment profile information, adverse information, judgments and notices.

Payment Profile Information:

What is it? This listing changes every month, dependent on whether or not you paid your clothing/ other accounts. When you skip a payment, this gets listed on your credit record.

How do I remove it? There is nothing you can do to remove this type of listing.

Will it affect my loan application? It is definitely something your potential creditor will take into account when considering your application. However, in most cases you will be granted credit.

Adverse Information:

What is it? After skipping a few of the abovementioned payments or not paying on time, your creditor will notify the credit bureau and have you tagged as a ‘slow payer,’ ‘default,’ ‘write off,’ etc.

How do I remove it? The only way to remove this type of listing is to write to your creditor with reasons as to why your account was in arrears AND make payment to get your account up to date. Examples of reasons include hospitalization or retrenchment – please remember to attach proof of payment as well as proof of your reason. It is then up to your creditor to decide whether or not it will write to the bureau to remove the listing.

Will it affect my loan application? Although you will be granted credit in most cases, it may come at a higher cost to you.

Impact of the Removal of Adverse Consumer Information and Information Relating to Paid Up Judgements Regulations, 2014? Some data on your credit record (adverse information reflecting on 1 April 2014) was ordered to be removed. This does not mean that you no longer owe the outstanding amounts to your creditor. What is does mean is that future creditors will no longer see old adverse information data as available on 1 April 2014 when considering your credit application.

Judgements:

What is it? After skipping many payments, ignoring calls from your creditor, receiving letters of demand, summonses, your creditor will apply to court to confirm the amount owing plus interest, legal fees, etc.

Whereas a debt prescribes (expires) within three years since the date of your last payment or acknowledgement of the debt, a court order confirming a debt only prescribes after thirty years. This means your creditor has thirty years to enforce the debt.

For more information on judgements and emolument attachment orders (garnishees), please visit this link: http://www.legalherolearn.blogspot.co.za/2015/07/emolument-attachment-orders-in-south.html

How do I remove it? Previously you had to:

i. Pay the debt in full;

ii. Obtain a confirmation letter from the creditor;

iii. Apply to the same court for the rescission of the judgement. This was a costly exercise;

iv. Obtain a copy of the court order confirming the rescission;

v. Send the court order confirming the rescission to the credit bureau and request the judgement’s removal from your credit record.

Effective 1 June 2014, the creditor has an obligation to send confirmation of a paid up debt to the credit bureaus within 7 days. The bureaus (Transunion/ Experian) will then remove the listing within 7 days. You may also contact the bureau and submit the confirmation letter to arrange the removal if you wish to do so.

Will it affect my loan application? Yes. Having a judgment against your name will most likely lead to the rejection of your credit application.

Notices:

What is it? This is the most serious type and happens after you have been sequestrated or placed under administration.

How is it removed? You need to apply to court.

Will it affect my loan application? Yes. Creditors will not grant you credit and might even be held liable for acting recklessly should they do so.



We hope you found this post helpful. If you are a Legal Hero Policyholder, kindly contact our offices for assistance with your credit record.

Five Unexpected Hangouts of the Law at Your Family Home

Remember to set the table for one extra (sometimes uninvited) guest that hangs out at your family home. Yes, it is important to have a basic understanding of the law, as it is with us wherever we go. Let’s have a look at a few Family, Civil, Criminal and Labour Law examples at home to put things into perspective.

1.       The irritating neighbours. Your neighbour has the right to the use and enjoyment of his/ her property. This, however, does not mean he can start a band and cause widespread upset by his 2am practise sessions. Neighbour law is based on reasonableness and tries to find a balance between opposing property rights. Your neighbour may therefore only use and enjoy his property to the extent that it does not infringe YOUR right to use and enjoy YOUR property. Remember that one cannot be oversensitive and all factors are taken into account when you apply for an interdict against your neighbour. An interdict can force someone to do something, prohibit someone from doing something or force someone to continue doing something.

2.       That new faulty washing machine. The Consumer Protection Act awards goods an implied warranty of 6 months. According to section 56 of the Act, a Consumer may ask for a repair/ replacement or refund at no cost to the consumer should a defect occur within the first 6 months. Where to complain: contact your hero or contact complaints@thencc.org.za.

3.       School fees. Previously schools could only sue the custodian parent (parent with whom the child stays) for arrear school fees. Only after the Supreme Court of Appeal ruling in Fish Hoek Primary School v GW 2010, can the other biological parent be held liable for arrear school fees. How to claim an increase in child maintenance: contact your hero or visit the Maintenance Division of the Magistrate’s Court and ask for the relevant forms. 

4.       Aging parents. It is true that an aging parent can claim maintenance from his/ her independent children. The parents would have to prove their expenses, that they are unable to support themselves and that the child is in a position to support his/her parent. How to claim: contact your hero or visit the Maintenance Division of the Magistrate’s Court and ask for the relevant forms.

5.       Domestic workers. A Domestic Worker MUST be provided with an employment contract and a pay slip. The employer must safe keep pay slips for THREE years. Impermissible deductions from your Domestic Worker’s pay include damages caused by ironing, meals provided during working time and crockery/ electrical appliances breakages. Noncompliance: the Department of Labour can send an Investigating Officer to your home and you may receive a fine. The matter could proceed to the Labour Court.

If you have any questions on one of the above, please send an email to freeadvice@legalhero.co.za.

Yours faithfully,

Legal Hero 

www.legalhero.co.za

Who gets to keep the ring?

TIP

The same applies to marriage and divorce. 

In your ante-nuptial agreement you may arrange to keep your engagement ring should you divorce (regardless of fault/ blame). As a policyholder of the Legal Hero product, you are covered for an ante-nuptial agreement.

Wishing you a great day, 

Legal Hero

www.legalhero.co.za 

Can I claim money from my fiance if he decides to break our engagement?

“I do believe that the time has arrived to recognise that engagements are outdated and do not recognise the mores of our time” (Van Jaarsveld v Bridges (344/09) [2010] ZASCA 76 para 3).

Breach of promise (to marry) could lead to two claims, depending on the circumstances:

a)      Contractual damages (wedding preparations, costs to move to a different town, renovations to the new home, etc.);

b)      Delictual damages (sentimental damages if he broke the engagement scornfully and in an insulting manner. It is not enough to feel hurt or abandoned, the test is objective).

When calculating contractual damages, the point is to place you as the ‘innocent’ party in the position you would’ve been in had you and your fiancé not agree to get married. Remember to minus payments already contributed by him (towards the wedding preparations for example).

When calculating delictual damages, it is important to note that ‘the world has moved on and morals have changed’ (Van Jaarsveld v Bridges cited above para 6). In the Van Jaarsveld case the High Court awarded Bridges R110 000-00 as delictual damages due to the manner and circumstance in which he ended the engagement (via SMS). However, on appeal, the Supreme Court found that an SMS is a perfectly acceptable way in our modern society and that Van Jaarsveld was very apologetic and compassionate by also apologizing to her mother and saying he still views her as a ‘pragtige mens’ (lovely person). 

Wishing you a lovely day, 

Legal Hero. 

www.legalhero.co.za 

Enforcement or cancellation of a contract

Question received

“Can I claim back my money? I ordered hay for my horses in November 2013 after seeing an advertisement on the internet. The man was very polite over the phone and convinced me to pay the full R3 000 in advance. He explained that the hay was fresh and the only reason for selling was to clear his storeroom. When the man came to deliver the hay I realised that the hay was OLD, MOULDY AND STALE - I have photos to prove it - and refused to accept the goods. He left with the bad hay and promised to be back at a later stage with better quality. I am still waiting!! He no longer answers my calls but I’ve managed to get his address. Should I approach him?”

Reply:

You and this man (let’s call him Mr X) entered into a verbal contract over the phone the moment the two of you agreed that the hay would be delivered in exchange for R3 000 – to be paid up front.

It is an underlying requirement that the parties to a contract act in good faith and fair dealing. As you have possibly learned, this is sadly not always the case.

The truth is that Mr X has been in breach of contract for more than a year. The type of breach here is called positive malperformance.

-          Positive malperformance happens where the supplier delivers the ordered goods on time but where the quality of the goods is improper/ incomplete/ defective;

-          The receiving party subsequently has a right to reject the improper/ incomplete or defective goods;

-          What generally happens next is that the receiving (innocent) party would demand:

a)      That the supplier replace defective goods with proper/ complete goods in an acceptable order;  OR

b)      A cancellation if the defect/ breach is material/ very serious. 

Seeing as stale/ mouldy hay can cause your horses infection and/ or hay induced-colic, the defect appears to be material in this instance! 

Van der Merwe et al (Contract, General Principles 1 ed 1993, at 255) describes a very serious breach as follows (also quoted in the case of Singh v McCarthy Motors):

“The test for seriousness has been expressed in a variety of ways, for example that the breach must go to the root of the contract, must affect a vital part or term of the contract, or must relate to a material or essential  term of the contract, or  that there must have been a substantial failure to perform.   It has been said that the question whether a breach would justify cancellation is a matter of judicial discretion.   In more general terms the test can be expressed as whether the breach is so serious that it would not be reasonable to expect that the creditor should retain the defective performance and be satisfied with damages to supplement the malperformance.”

Can you claim back your money?

Firstly, well done on tracking down Mr X’s address! This is invaluable, not necessarily for approaching Mr X (in fact, we advise against it) but for delivering the relevant legal documents to demand fresh hay or cancellation (repayment of your R3 000).

The good news is that you are able to pursue the matter via the Small Claims Court as your claim is less than R15 000. The aforementioned court is free of charge and does not allow for legal representation. Proceedings are informal and you will be able to rely on text messages and informal means of communication.

The first step is to put your claim in writing by sending Mr X a Small Claims Court section 29 letter of demand in terms of which you request fresh hay as agreed upon within 14 days, failing which you will cancel the contract and demand repayment. If you are a Legal Hero policyholder, please contact us and open a new file for assistance as soon as possible. 

It is very important to note that a civil claim prescribes (becomes invalid) after 3 years since last date of payment/ acknowledgement of the debt provided no legal action has been instituted during that time. This means that your civil claim against Mr X will prescribe in November 2016.  After November 2016, Mr X will be able to raise the special defence of prescription in court.

Lastly, based on the information provided to us, it appears that this sale was a once-off. Should Mr X, however, sell hay on a regular basis during the ordinary course of business, Mr X would be bound by the rules of the Consumer Protection Act (as a supplier). In terms of the Consumer Protection Act, a consumer may request repayment, a repair or replacement of defective goods. One could also lodge a consumer complaint via complaints@thencc.org.za.

Wishing you a fantastic day,

Legal Hero.

www.legalhero.co.za