Withholding occupational rent

[The_Mowgs]

Long story short,

Friend bought a place with OTP which stated all plans are according to specifications and approved by the relevant departments, which was not the case when the bank checked the property.

Friend moved into the place after the owner said he will sort everything out but now theres a carport which needs to come down as well as 3 other flat roofs which were not built according to specification as on the plan.

They are now in the house almost 2 months and nothing has been done in terms of rectifying the issues nor has the account for the engineer been paid.

Is it possible or legal to only pay a portion of the occupational rent or what other options are there.

The best course of action will obviously be to get legal advice but thought Id ask here first to get some ideas.

 

[Binary_Bark]

Best advice is to go talk to a property/rental ombudsman, they would be able to tell you the best legal route of action to take

 

[swakop_toe]

He should have had a clause stating as such, but hindsight has 20/20 vision.

It should force the previous owner to comply, but perhaps also first check the T's&C's of his OTP/Sale Agreement regarding non-payment clauses of any kind.

 

[RonSwanson]

What does the OTP state regarding breach conditions (opskortende voorwaardes)? Complain to your conveyancer that the seller is stalling.

I would not advise withholding rental, puts you in a bad light.

 

[3WA]

What do the conveyancing attorneys say?

 

[Lupus]

Never withhold rent, approach the lawyers, he has to pay for the plans, or the fixing of anything wrong.

 

[The_Mowgs]

Best advice is to go talk to a property/rental ombudsman, they would be able to tell you the best legal route of action to take

He should have had a clause stating as such, but hindsight has 20/20 vision.

It should force the previous owner to comply, but perhaps also first check the T's&C's of his OTP/Sale Agreement regarding non-payment clauses of any kind.

Thanks, will pass the advice on.

What does the OTP state regarding breach conditions (opskortende voorwaardes)? Complain to your conveyancer that the seller is stalling.

I would not advise withholding rental, puts you in a bad light.

Will find out and come back to you.

What do the conveyancing attorneys say?

Dont think they have been in contact with them but will advise them to.

Never withhold rent, approach the lawyers, he has to pay for the plans, or the fixing of anything wrong.

He is willing to pay for the plans, he is just not doing it and the agents are just shrugging their shoulders.

 

[Lupus]

Thanks, will pass the advice on.Will find out and come back to you.Dont think they have been in contact with them but will advise them to.He is willing to pay for the plans, he is just not doing it and the agents are just shrugging their shoulders.

He doesn't get the money released until its all sorted.

 

[Steamy Tom]

the lawyers should hold the rent back, but your friend should pay it, he should definately not be paying the rent directly, it should go through the attorney

 

[Alton Turner Blackwood]

If your friend is paying occupational rent it means transfer has not gone through yet and the bank has not paid for the property yet. In other words, the conveyancer can still deduct whatever is not according to the OTP once they get the payment from the bank and only then pay the seller.

Something similar happened to me. There was building rubble at the back of my house and the OTP stated that I had to remove it. Due to the rush in having to move, I completely forgot to remove it. The conveyancer called me and told me the buyer is complaining. They gave me the option to either get someone to remove it or the buyer can get a quote and send it to them and they'll pay whoever is going to remove it. Because I was so gatvol of all the moving bullshit I told them to let the buyer sort it out.

To my regret.

That bit of laziness cost me R5k and it wasn't even a bakkie load. They deducted their fees, plus the rubble removal fee before giving me my money when the bank paid them.

 

[The_Mowgs]

the lawyers should hold the rent back, but your friend should pay it, he should definately not be paying the rent directly, it should go through the attorney

Im almost certain he is paying it directly. I will find out from him what the OTP says in that regard.

 

[^^vampire^^]

Long story short,

Friend bought a place with OTP which stated all plans are according to specifications and approved by the relevant departments, which was not the case when the bank checked the property.

Friend moved into the place after the owner said he will sort everything out but now theres a carport which needs to come down as well as 3 other flat roofs which were not built according to specification as on the plan.

They are now in the house almost 2 months and nothing has been done in terms of rectifying the issues nor has the account for the engineer been paid.

Is it possible or legal to only pay a portion of the occupational rent or what other options are there.

The best course of action will obviously be to get legal advice but thought Id ask here first to get some ideas.

One thing to note in legal matters is that two wrongs don't make a right. What I mean by this is that if you withhold occupational rent, this does not stack up on the basis that the seller didn't come through on their part of the deal and so it is fine to withhold, but counts as a separate infringement against you for not paying, irrespective of whether the seller is in contravention of the contract and can have legal ramifications depending on what is stipulated in the contract with regards to OR payment. It can also show that you are not acting in good faith of the contract, regardless of what the seller does and can mean that whoever winds up mediating the contraventions of the contract could lean less on the seller because you have also caused an infraction.

Like others have said though, of OR is being paid then the settlement hasn't gone through and while nothing is up to scratch it shouldn't. Make sure the lawyers are aware of all issues so transfer does not take place until all outstanding issues are rectified.

 

[The_Mowgs]

One thing to note in legal matters is that two wrongs don't make a right. What I mean by this is that if you withhold occupational rent, this does not stack up on the basis that the seller didn't come through on their part of the deal and so it is fine to withhold, but counts as a separate infringement against you for not paying, irrespective of whether the seller is in contravention of the contract and can have legal ramifications depending on what is stipulated in the contract with regards to OR payment. It can also show that you are not acting in good faith of the contract, regardless of what the seller does and can mean that whoever winds up mediating the contraventions of the contract could lean less on the seller because you have also caused an infraction.

Like others have said though, of OR is being paid then the settlement hasn't gone through and while nothing is up to scratch it shouldn't. Make sure the lawyers are aware of all issues so transfer does not take place until all outstanding issues are rectified.

Yeah I just spoke to him, he will be in contact with ESI who is doing the transfer as I explained that he might get issues for withholding the occupational rent.

 

[pinball wizard]

The best course of action will obviously be to get legal advice but thought Id ask here first to get some ideas.

A simple email to the transferring attorney should give all the answers needed.

 

[The_Mowgs]

A simple email to the transferring attorney should give all the answers needed.

He spoke to the PA at ESI who said she doubts that there are any recourse but one of the attorneys will contact him today.

 

[ScottulusMaximus]

Why are they contacting the agents? This is the transfer attorneys/conveyancers job.

Rent and property cost should be held at the conveyancer until all terms of the OTP are fulfilled and the transfer has gone through.

They should NOT be paying the previous owner directly for the rent.

If it's been done as above, like it should have been, then just sit and wait, the previous owner isn't getting a cent so will jump soon enough.

If it hasn't well then they need to throw a bitch fit at the transfer attorney.

 

[The_Mowgs]

Why are they contacting the agents? This is the transfer attorneys/conveyancers job.

Rent and property cost should be held at the conveyancer until all terms of the OTP are fulfilled and the transfer has gone through.

They should NOT be paying the previous owner directly for the rent.

If it's been done as above, like it should have been, then just sit and wait, the previous owner isn't getting a cent so will jump soon enough.

If it hasn't well then they need to throw a bitch fit at the transfer attorney.

I only realised now I forgot to add. Because of the buildings on the property which is not according to plan the bank said they will only release funds when they receive a occupancy certificate from COCT.

The work that needs to be done to rectify the issues is in excess of R100k which I doubt the owner has to fix everything.

 

[Alton Turner Blackwood]

Yeah I just spoke to him, he will be in contact with ESI who is doing the transfer as I explained that he might get issues for withholding the occupational rent.

They were my conveyancing attorneys as well. They're quite efficient and easy to deal with.

 

[Alton Turner Blackwood]

I only realised now I forgot to add. Because of the buildings on the property which is not according to plan the bank said they will only release funds when they receive a occupancy certificate from COCT.

The work that needs to be done to rectify the issues is in excess of R100k which I doubt the owner has to fix everything.

Well your friend is in for a rough ride then.

City of Cape Town Link

Sharing a City of Cape Town Page...

www.capetown.gov.za

 

[I.am.Sam]

I only realised now I forgot to add. Because of the buildings on the property which is not according to plan the bank said they will only release funds when they receive a occupancy certificate from COCT.

The work that needs to be done to rectify the issues is in excess of R100k which I doubt the owner has to fix everything.

so the property gets fixed and the money gets taken from the funds from the sale