With our current economic climate it is very easy to find yourself with a tenant that does not pay rent, or as a tenant being unable to pay your monthly rent.

As a Landlord what should you NOT do?

1. DO NOT EVICT THE TENANT YOURSELF
2. DO NOT RESTRICT ENTRY TO THE RENTED PROPERTY
3. DO NOT PLACE LOCKS ON THE RENTED PROPERTY
4. DO NOT DISCONNECT THE WATER AND ELECTRICITY SUPPLY

If you as Landlord do the above, you place yourself at risk of receiving a Court Order demanding of you to restore the status quo ( i.e remove locks, have tenant move back)  and the Court may in all likelihood order you to pay the legal costs of your Tenant.

But why would the Court do this, after all it is your property and the Tenant is not paying rent?

In law we have a remedy called mandament van spolie (*my first and only legalase in this post-  I promise).

In terms of the mandament van spolie remedy no person is allowed to forcibly remove any person from the use of an item for instance a flat, town house or loose standing house when that person/tenant is continuously occupying that property without first having obtained a Court Order.

The remedy may sound unfair especially when a tenant is living rent-free in your property and you are struggling to make ends meet. The remedy is however designed for purposes of promoting an organized society, where no person is allowed to take the law into their own hands and to minimise conflict.
Rather than resorting to taking matters in your own hands , engage a lawyer for legal assistance, there are legal remedies available to recover your rent, interest, legal costs and damages.

Are you struggling with a Tenant or a Landlord? Give us a call.

WILLIAMS LEGAL PRACTITIONERS (NAMIBIA)

 +264 61 435 8239 

 caroltjies@gmail.com

When in love couples do not foresee that the marriage may end on not so happy terms. We are blinded by love… A pre-nup (anti nuptial contract) is not only intended for divorce but also during the marriage, read on for 4 reasons to get a pre-nup.

#1        YOUR CREDIT RECORD IS NOT LINKED TO YOUR SPOUSE

If your fiancé has a bad ITC credit record, marrying without a prenuptial agreement (also called ante nuptial contract) exposes your to your future husband/ wife’s bad ITC credit record and closes the doors for you to get credit.

#2           YOU DO NOT MARRY INTO DEBT

If your fiancé has a tendency to rack up debt, you marry into debt and you will have to take responsibility for the payment of that debt. To avoid taking responsibility for your spouses’ debt you should get  a prenuptial agreement (also called ante nuptial contract.).

A prenuptial agreement protects you from your spouses’ debt and safeguards your property when your spouses’ creditors want to recover their debt from your spouse.

#3          PRENUPS HELP AVOID STRESSFUL SITUATIONS

Divorces are emotional and can be long and drawn out.  A vengeful husband or wife can try to take all properties.

If you have a prenuptial agreement there will be less arguments, less stress and your divorce process will be shortened. Your prenuptial agreement will determine the terms of your divorce and who gets which properties.

#4        PRENUPS PREPARE YOU FOR THE UNKNOWN

When people marry they hardly ever foresee any disaster for the future. Your business may not be going well opening you up to bankruptcy, and a spouse may show their true colours as a Gold Digger much later in the marriage.

A prenuptial agreement prepares you for the unknown, and acknowledges that your happy marriage might be over some day, and neither party will be overwhelmed by it.

Need a pre-nup? Contact us today

WILLIAMS LEGAL PRACTITIONERS (NAMIBIA)

+264 61 435 8239 

caroltjies@gmail.com

1. Hire a divorce attorney

Before deciding on a divorce attorney, interview at least 3 divorce attorneys before deciding on one.  You can also get referrals from friends who have recently gone through the same process. When deciding on a divorce attorney, make sure that you decide on an attorney who knows the value of settling a divorce quickly, but is also willing to fight for you in Court should the need arise.

If you are unable to pay your legal costs, talk to your lawyer to get a court order for maintenance for the children whilst the divorce is being finalised and your spouse making a contribution to your lawyer’s costs.

2. Get an idea of where you stand financially

Make a list of your assets and your debts. Assets are not just the obvious house, cars and furniture but also includes investment/savings accounts and shares. As far as possible get documentation to proof the existence of the assets.

Determine your debts/ what you own: Get  the latest statements of all debts you are aware of from your respective creditors.

Whether you are married in community of property or out of community of property (with antenuptial contract or married North of the Veterinary Red Line) will have an impact on your assets and debts. As a rule of thumb, if you signed for the debt or signed to purchase the property the asset or debt belongs to you.

3. Make sure you know what you earn and what your spouse earns

You can find this information on either your bank statements, salary slips or latest Income Tax Return.

If your spouse is self-employed copies of bank statements and financial business statements will give you an indication of what your spouse earns. Make copies of these documentation if you can.

If you are unable to gather any information showing income, your lawyer can obtain this on your behalf during the Discovery Stage.

4. Draw up a budget showing your post-divorce expenses.

You already know what your current monthly expenses are. Following a divorce, most monthly incomes drop drastically. It is therefore important that you have an estimate in mind of what it will take to “keep the lights on”.

It is important to keep an estimate in mind as it will assist you when your divorce is negotiated or when your case goes to court.

If you intend to have custody of the children, it is equally important to have an estimate in mind for the monthly needs of the children. Use this example below to get an idea of your post-divorce expenses.

In this example, working on a 4 member household, you monthly expenses budget is N$4250 and N$5750 per child. This is a good starting point to determine the maintenance for the children and what you need to budget for monthly. Bear in mind that maintenance for yourself, and  the children are based on what you earn and what your spouse earns, talk to your lawyer in this regard.

5. Make a decision on whether to move out or stay

If there is domestic abuse, talk to your lawyer about getting a Domestic Violence Protection Order. If you pursue this route, the Court can decide on who must move out and who should stay in the family home.

A factor to consider is whether your spouse may sell off some of the jointly purchased property when you are not at home.

Need a divorce lawyer?

Contact us :                 Williams Legal Practitioners

                                       Third Floor Maerua Office Towers

                                      Jan Jonker Avenue

                                      Windhoek

                                       Namibia

                                      +264 61 435 8239  

                                       caroltjies@gmail.com

This article in turn addresses what a Landlord can legally do when a Tenant is in arrears with rental.

In  law, the Landlord has a special protection assisting in the collection of arrear rental from tenants, which is called the “LANDLORD’S HYPOTHEC/LIEN”.

This hypothec allows the Landlord to sell the movable goods of the tenant  which are on the rental property, if the tenant fails to pay the rent.

The hypothec exists from the date of the tenant’s occupation of the leased premises, but becomes legally enforceable only once a Court Order is obtained. In the absence of a Court Order, the Landlord cannot enforce the hypothec/lien. Thus, prior to a Court Order being obtained, a tenant is free to remove his movable goods from the rental property.

The Landlord may bring the hypothec/lien into effect by interdicting the tenant from removing goods from the premises. Thus included in an arrear rental Summons is an Automatic Rent Interdict. Service of this Summons on the tenant brings the hypothec/lien into effect.

The Magistrate Courts’ Act empowers the Landlord to attach and simultaneously remove the tenant’s movables from the leased premises in security of rent.

In effect, the Messenger of Court serves the Summons and attaches and at the same time removes the tenant’s movable goods to the value of the arrear rental plus costs. The Messenger pending finalisation of the case then stores the movables. This  procedure  secures the rental and costs and also acts as an incentive for the tenant to make payment of the arrear rental immediately, as the tenant would want his property back.