LAWYER TALK

We have worked with many attorneys over the years and continue to be enlightened by their plight to protect and serve in the way that they do in this ever changing complex environment.

Recently we had the opportunity to pose some basic questions around PROPERTY LITIGATION for the general "goings on" within their walls and experience, in the hopes to perhaps shed some light for those that may appreciate or be a little curious.

Liz Hymns from Miltons Conveyancing Attorneys in Table View, graciously shared some of her super valued time for a quick Q&A with us for this post, based on her own experiences.

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QUESTION 1:

What is the most common case of property litigation / the thing most buyers / sellers fight about?

Answer:

"In my experience this is in regards to defects in the property. The voetstoots clause normally protects the seller however most lay people don’t seem to know what is the difference between a patent or a latent defect. Furthermore, the purchaser often incorrectly assumes that the seller must have known about the latent defect. The most common defect around which there are fights is a leaking roof or any other such type of water ingress in the property."

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QUESTION 2:

What is the most common reason things get messy?

Answer:

"See above but also purchasers don’t pay enough attention when viewing the property. Things like windows not closing properly. As regards latent defects, people obviously sometime assume that patent defects, accordingly they believe they can claim for them. Unfortunately however to be successful in claiming for a latent defect you would have to show that the seller actually knew about same."

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QUESTION 3:

How long commonly can litigation take to be resolved?

Answer:

"Litigation is never quick or easy and if a matter goes all the way to trial and the parties do not settle first, you are looking at if you are in a Magistrates Court up to 2 (two) years (i.e. your claim is less than R400 000-00) and in the High Court it could take anything up to 5 to 6 years, that is for claims of over R400 000-00."

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QUESTION 4:

What are the most common bullet point steps and timelines for a standard case start to finish?

Answer:

"Letter of demand is sent usually giving the opposing parties 7 (seven) days to reply. Summons is issued. The opposing party has 10 (ten) days to file a Notice of Intention to Defend. They will then have 20 (twenty) days to file their Plea i.e. setting out their defense to the matter. There might also be a counterclaim filed at this stage in which case the Plaintiff will have 15 (fifteen) days to plead to that counterclaim. Once the Pleas have been finalized either party may decide to file a replication in response to their Plea. They have 15 (fifteen) days from the filing of the Plea to do so. Thereafter the pleadings are closed and the parties can start the process of setting the matter down for trial. The parties ask each other to discover, that is they ask for all the relevant documentation they intend using at trial and the Court then provides a pre-trial date in which is determined how many witnesses will appear, whether any trial particulars will be requested etc. If the Court then decides that the matter is trial ready, they will declare it trial ready and then you will wait for the Registrar of the High Court or Clerk of the Court to provide a trial date"

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QUESTION 5:

Your best advice for anyone considering the Litigation route.

Answer:

"To obtain sound legal advice. To embark on same if they believe they have a solid foundation to do so. If you are a Defendant in the matter where you believe that the Plaintiff does not have a strong or sound basis, there is always an expense to defending a matter and accordingly it is sometimes wise to offer some kind of settlement which will cost you less in the long run than defending the matter."

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BIO:

Liz attained her LLB at the University of Cape Town in 1996. She then travelled overseas before joining a Cape Town based law firm in 2001 where she completed her articles. After her admission as an Attorney in 2003, Liz has concentrated her practice as a litigation attorney, focussing on property related litigation and Family law. Liz joined Miltons Table View branch in 2014 and heads the litigation department. Email: lizh@miltons.law.za

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Photo Credit: Stock image

Writer Credit: Clay-zi Properties