Category Archive: Eviction

Unpaid municipal bills – what’s a landlord to do?

The sting in the tail when a tenant moves out is often a legacy of unpaid bills

Your tenants have moved out, either willingly or through the eviction process. Then you get hit with a large unpaid rates bill by the local municipality. What do you do?

Utility bills can be a sore point for landrlds and tenants. They don't have to be.

If it comes to this, the answer is very little. It’s more important to avoid this scenario altogether. We’ll look at what to do if this happens to you, and in Utility bills – who’s responsible and how to manage them we show you how to prevent it happening again.

Whose bill is it anyway?

Ultimately, the payment of utilities and taxes (often combined in one “rates” bill by the municipality) is the responsibility of the property owner. You may agree that these will be paid by the tenant, but if the tenant reneges on this obligation, the municipality will be within its rights to chase you as owner for payment.

The account may be registered in the tenant’s name, and you may have ensured a watertight wording in your lease agreement to this effect. But don’t take too much comfort from this. There have been many cases of tenants vacating premises and leaving accounts left unpaid. Property owners would deny responsibility as the account was in the tenant’s name. Municipalities, understandably, ran out of patience and many now do not allow the account to be in any name other than the registered owner of the property. If the account was registered prior to this decision, it may still be in the tenant’s name, but unfortunately that does not absolve you of the liability for the account.

Recovering unpaid bills from a tenant

Your first port of call is of course the deposit. For this reason it is a good idea not to be too hasty in returning the deposit after the tenant moves out. They will of course pressure you for prompt payment, particularly if they have to pay a deposit on a new property. But you are within your rights to ensure there are no outstanding unpaid bills against the property as well as checking the inventory and inspecting the property for damage. If you have taken two months’ rent as a deposit, hopefully you will have enough to cover what is owing. However, this may not be the case if the rates have gone unpaid for some time or if there are cleaning and repair bills to cover too. 

If the deposit in insufficient to offset the debt, in the first instance try to contact the tenant and ask for settlement. Be reasonable and offer to accept payment by instalments. An acknowledgment of debt signed by both parties is a good idea. If the tenant does not offer or is unable to pay the full amount upfront, you must pay the bill yourself. Failure to do so may result in the property’s utilities being cut off, which will only give you a bigger headache if you have new tenants or are trying to re-let the property. Recovering the debt is your problem, not the municipality’s.

Recovery via Small Claims Court

It is always better to settle amicably and out of court, but if that fails, and the debt is less than R20 000, you can pursue the debtor through the Small Claims Court. You do not need an attorney for this action and indeed are not permitted to be represented by one. Find your nearest Small Claims Court and contact the Clerk of the Court, who will instruct you in the procedure.

Help from the services of an expert lawyer

The Small Claims Court has limited powers. You may not be successful in recovering your unpaid municipal bills, or the amount may exceed R20 000. If you choose to continue to pursue your tenant for the money, you will need to sue them, using the services of a suitable law firm experienced in litigation. At this stage you will have to decide whether it is worth the hassle. Sometimes the prudent course of action is to cut one’s losses and move on. This is a personal decision, and we at SDLAW will support you if you choose to litigate.  

Prevention is better than cure

If you are reading this because you have been stung by a tenant, it is of little consolation to know that the situation could have been prevented. But presuming you will continue to lease your property and manage tenants, you will want to take the necessary steps in future to ensure you are not landed with an outgoing tenant’s rates bill again. Read Utility bills – who’s responsible and how to manage them to find out how to avoid this sting in the tail.

Seek the guidance of an expert eviction lawyer

If you need to pursue a tenant who has left you with unpaid municipal bills, contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za to discuss your case in confidence. Eviction lawyers Johannesburg and Cape Town are experts in rental property and will help you choose the most appropriate course of action for your circumstances. We will also advise you on lease agreements and tenant screening to ensure your tenancies run smoothly in future.

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Utility bills – who’s responsible and how to manage them

The end of a tenancy is not the time to discover your tenant has not been paying the municipal bills or “rates” – property taxes and utility bills like electricity, water and sewerage, etc. At that stage you are faced with the difficult task of trying to recover the money. It is far better to ensure due process is in place from the outset of the occupancy to cover all bills that will accrue to the property. This is best done via a written lease agreement, which sets out the terms and conditions of the rental and can be as detailed as you like, clearly stating the responsibilities of tenant and landlord for every cost. For example, you may wish to differentiate between utilities like water and electricity and “add-ons” like WiFi and garden maintenance. 

Rental Housing Amendment Act

Remember that when the Rental Housing Amendment Act comes into force it will be a requirement to have a written lease. If you don’t have one now, it’s time to draw one up. You will only have six months from when the Act becomes law to comply. This is your chance to incorporate all these details into your rental agreement with your tenant. 

Prepaid electricity meters

One of the simplest ways to avoid disputes over electricity bills is to install a a prepaid electricity meter. This is becoming more and more common in rental properties. The landlord has the comfort of knowing the electricity is paid for, and the tenant has control over consumption and can make economies if necessary, an option not available if the rent is “all-in”, i.e. the landlord pays the bills and allows for the costs in the rent charged (see below). Many municipalities no longer allow electricity accounts to be in any name other than the registered property owner, so a prepaid meter is a good compromise. The landlord remains the responsible person, and the tenant has no choice but to pay for use. If the account is not in the owner’s name, perhaps because the tenant has been in situ for a long time, it is a good idea to have the account transferred, as the owner will be held liable regardless.

Other utility bills

If the municipal account is still in the tenant’s name and the tenant is responsible for payment, the landlord can ask the tenant for proof of payment each month. If this is not forthcoming or there is any suspicion of arrears, you as registered owner are entitled to ask the municipality for a copy of the account. If you exercise diligence in ensuring these accounts are up to date, you will avoid any nasty shocks at the end of the rental period. 

“All-in” rent

An option some landlords prefer is to take on the liability for all bills (sometimes with some exceptions as noted above). The rent is then adjusted to accommodate this. This is known as an “all-in rent”. There are pros and cons to this arrangement for both parties. For the tenant, it can be helpful, certainly in terms of budgeting, to have one monthly fee to pay. The cost of living in the property won’t vary summer to winter with changing consumption patterns. For those on a tight budget this can be a real boon. The downside, from the tenant’s perspective, is that there is no financial benefit to be gained from minimising consumption. (And this may lead to waste, a downside for the landlord.) The tenant also does not have any utility bills in their name, which can be a problem when address verification is needed for credit or other applications. However, the lease will usually suffice.

For the landlord, there are no concerns about unpaid bills. Everything is under their control. However, the adjusted rent is based on past average consumption. If the tenant is wasteful in their use of water, gas or electricity, the owner can be faced with a bill in excess of what has been included in the rent. The solution to this is a clause in the lease agreement stating that the landlord reserves the right to make a surcharge should consumption exceed reasonable amounts (“reasonable” can be difficult to define so the wording may refer to a figure or percentage). The landlord will also bear the burden of rate hikes, as they cannot increase the rent until the lease is due for renewal.

The alternative – charging utility bills to the tenant as they arise

A more transparent, albeit more labour-intensive, solution is to charge the utilities to the tenant as they arise. This means the landlord will always carry one month’s obligation for these costs and may still be left with unpaid bills at the end of the tenancy, but any liability will be limited and should be covered by the deposit. If this process is adopted, property owners should remember that tenants have a right to be treated fairly and equitably. It is good practice to:

  • Provide the tenant with copies of bills and meter readings
  • Give the tenant a formal invoice for their share of the costs as set out in the lease agreement
  • Avoid charging the tenant an estimate if the meter reading has not been done for the period. Many Rental Housing Tribunals do not support this practice. It is usually possible to email a photo of the meter reading to the municipality and request an accurate bill
  • Provide the tenant with a monthly statement and keep a record of all communications pertaining to utilities (this is particularly important for transparency where the rent is all-in)

It’s important to note that a property owner may not charge property taxes to the tenant. The cost can be factored into the rent, but may not be passed on to the tenant in a literal sense. 

Whether you opt for an all-in rent or charging the tenant on a PAYG basis, this can be a workable solution, particularly for a property owner who has been saddled with unpaid bills in the past. At the end of the lease, it is reasonable to deduct any amounts owing from the deposit, and this should not trigger a dispute, particularly if clearly stated in the lease.

Landlords may not…

Finally, if you hold control over power and water, it may be tempting to use this as leverage if your tenant fails to pay rent or breaches the lease conditions in any other way. Don’t do this! It is unlawful to disconnect your tenant’s electricity in the event of non-payment of rent. Disconnection without a court order is illegal. If your tenant is in arrears with rent, you must follow the correct eviction procedure as set out in the Rental Housing Act and Consumer Protection Act (CPA) and give them an opportunity to rectify the breach. 

Seek the guidance of an expert eviction lawyer

If you need help to draw up a lease agreement, screen tenants or negotiate utility bill arrangements with your tenant, contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za to discuss your case in confidence. Eviction lawyers Johannesburg and Cape Town are experts in rental property and will help you select the best option for your circumstances. We will ensure your tenancies run smoothly, with no nasty shocks waiting in store for you.

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Klein Akker Evictions – update

300 people made homeless in “legal” eviction

Activists and concerned citizens are outraged at the treatment of residents on Klein Akker farm in Kraaifontein. In an act of eviction that is legal but nonetheless inhumane, 300 poor and vulnerable occupants have seen their homes demolished before their very eyes and left by the side of the road, without blankets, clothing or children’s school books. Possessions have either been destroyed or put in storage, where residents can’t access them.

Klein Akker Farm Eviction - It was legal, but was it moral?

Eviction order

Many residents had lived on the Klein Akker farm for 20 years or more. They were part of a community and they looked after each other. Some had come initially as fruit pickers. When the farm was sold in 2012 and the current owner ceased growing fruit, workers found employment on nearby farms but continued to occupy their dwellings. The owner applied for and was granted an eviction order in October 2017. Residents successfully applied for a stay of the eviction until 1 July 2019.

In accordance with legislation, the City of Cape Town offered alternative accommodation. But the options provided were unacceptable to residents, for reasons of distance and unaffordability of transport to work, and safety. One location was Philippi, which is known for gang violence. Furthermore the land offered at Philippi was sodden and completely unsuitable for housing.

The eviction was completely legal, but was it moral?

Disregard for human rights

On Monday (19 August) law enforcement officials and security guards arrived at Klein Akker and began demolishing shacks with machinery. Clothes and possessions were seized. Children’s school uniforms were taken and put into storage, along with cooking pots and food. Residents were left by the side of the road with nothing to eat and no way to keep warm. The City of Cape Town has defended its position because it twice offered the residents alternative accommodation.

The South African Human Rights Commission (SAHRC) argues that the eviction represents multiple human rights violations, including the right to adequate housing, the right to water and sanitation, the rights of children, the right to a basic education and the right to human dignity. The SAHRC applied to the Western Cape High Court on Wednesday (21 August) to challenge the eviction, and supported the counter application by the Legal Resources Centre for emergency accommodation and constitutional damages for the victims of the Klein Akker eviction.

UPDATE:

On Monday (26 August), the Deputy Minister of Agriculture, Land Reform and Rural Development, Mcebisi Skwatsha, committed his department to housing the families who were evicted from the Klein Akker farm in Kraaifontein last week. They are to be temporarily accommodated on a state farm near Stellenbosch. He was shocked by the conditions in which the 93 households were living, following a visit to the site on Monday morning. He said, “As leaders, we cannot just fold our hands while people living on the streets. We have a responsibility to take care of the people, especially at these difficult times like this one.” Source

Last week, following the evictions, the High Court ruled that the City of Cape Town must “make available within 24 hours of this order, temporary emergency shelter in the form of land and emergency housing kits at the emergency housing site known as Kampies, Philippi”. Source

However, the Philippi site had already been rejected by residents as unsuitable for habitation. The intervention from the Deputy Minister is likely to be far more welcome.

Championing fair evictions

At SD Law, we believe property owners have the right to enjoy their property. We also believe that tenants should be treated fairly and justly. We act for both landlords and tenants and have a deep understanding of the relevant legislation. But our insight goes further than that. We are Cape Town attorneys with high emotional intelligence. We seek legal solutions that incorporate moral and ethical conduct and respect human rights. If you have an eviction matter, contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za to discuss your case in confidence. We’ll never leave you stranded.

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Red Ants continue to disregard due process of law

Illegal evictions and fatalities are calling cards of Red Ants

At Cape Town eviction lawyers Simon Dippenaar & Associates (SDLAW), we were angered and saddened to learn of recent illegal actions by the Gauteng security company Red Ants. The Red Ants firm specialises in “urban management support services for human settlements”, and was established to counter the influence of large, multinationals who dominate the South African economy. Its mission is “to protect, train, empower, serve and provide food security to our communities”. A noble mission indeed, yet more often than not the Red Ants are the cause of homelessness in those communities rather than providing security, food or otherwise.

Evictions should be lawful and respectful. Rend Ants act illegally.

As eviction attorneys we uphold the rights of property owners under the law, but we also fight for tenants whose rights are threatened or disregarded. We defend the Constitution, and base our law practice on the citizens’ rights bestowed therein. Eviction law has been carefully crafted to protect the poor and the vulnerable, after decades of exploitation and unfair practices under apartheid. Everyone has the right to adequate housing. Therefore the recent actions of the Red Ants in Gauteng are disappointing and disturbing.

Shacks destroyed in Alexandra Township

Earlier this month, more than 80 shacks, allegedly built illegally and too close to the Jukskei River, were destroyed by the Red Ants in Alexandra, Johannesburg, rendering 100s homeless. However, the Red Ants are not solely to blame. Johannesburg Mayor Herman Mashaba has said that the demolition was unlawful and should not have been authorised by city officials. The eviction order was in fact obtained in 2016 (before Mashaba was elected), but the eviction not carried out until now. Mashaba vows to “get to the bottom of it” and rebuild the demolished structures timeously.

Marshall St, Johannesburg

Last October, the Red Ants were also involved in a mass eviction in the Joburg CBD. In this case, residents were not forewarned of the eviction and many of their personal possessions were destroyed, in a callous and brutal removal that took place while many occupants were at work. We can only imagine the horror of returning home to find your belongings damaged or destroyed and your home uninhabitable. Occupants of the Marshall St building were mostly domestic workers, taxi drivers and informal traders, vulnerable individuals with limited means either to replace their possessions or to take action against the city. In this case, according to Tshepo Skosana, the sheriff who carried out the eviction order did not act in accordance with due process of law and “was negligent in fulfilling his duty to inform the residents of their pending eviction, which made the process illegal”. The Red Ants were the purveyors of brutality, but not the cause of it.

Death in the Vaal

It’s bad enough losing one’s home, but eviction should not result in loss of life. Sadly, this is precisely what happened in April when an eviction in the Vaal area of Gauteng, again facilitated by the Red Ants, led to clashes with community members. Two died, one from the Red Ants and one from the community, and six were injured. Yet again, the Red Ants and the Sheriff were acting on a court order to remove occupants from illegally erected shacks. The casualties happened when a fight broke out between the residents and the Red Ants.

Duties of the Sheriff

As Eviction Lawyers in South Africa, we do not condone the construction of unlawful dwellings. Residents should act within the law in choosing a site and erecting a structure. However, the current housing situation in South Africa does not always make that possible. Although there is a comprehensive social housing strategy that includes RDP homes, Community Residential Units (CRUs) and Upgrading of Informal Settlements (UISP), waiting lists are long and government has fallen behind in meeting its housing commitments to the poor and vulnerable in our society. It is no wonder communities sometimes take matters into their own hands. Section 26 of the Constitution guarantees the right to adequate housing, so they are only claiming their constitutional rights.

But landowners also have a right to the proper use of their land, so they may seek an eviction order when homes are built illegally. However, the court has an obligation to consider all circumstances before granting the order. According to Skosana, if occupants will be made homeless, there must be provision of alternative accommodation for an eviction to be lawful. The court must also consider the number of women and children and old people affected by the eviction and this will influence the amount of time granted before the order can be served. Turning people out of their homes with no warning breaches these conditions and more. 

The Sheriff’s role is serve court documents. This includes orders of eviction. The Sheriff has a duty to inform the occupants of the situation, in terms they will understand, and this includes their right to be represented in court. The Sheriff is also obliged to treat everyone with dignity and respect, and ensure that belongings are properly looked after during an eviction. The use of violence and threats in effecting an eviction is an abuse of the Sheriff’s authority.

In all these cases the Sheriff acted together with the Red Ants to intimidate residents and damage or destroy their possessions. Neither party can claim that they implemented a legal process.

Protection under the law

Residential tenants are protected through the Prevention of Illegal Eviction Act (PIE) and the Consumer Protection Act (CPA). A stringent eviction process is meant to safeguard human dignity, property, and ultimately life! As a specialist eviction attorney we are diligent about observing lawful eviction procedure. We condemn the abuse of power recently demonstrated by the Sheriffs and Red Ants involved in these evictions.

Landlord or tenant – let us help you

Eviction lawyers are now in Johannesburg, Pretoria and Durban, as well as Cape Town. So wherever your property is located, we can help you with an eviction matter, whether you are landlord or tenant. If you have been the victim of an illegal eviction, call us today.

Contact Eviction Lawyers South Africa on 086 099 5146 or email sdippenaar@sdlaw.co.za

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Rental arrears? Is it worth trying to collect?

What can you do when your tenant falls into rental arrears?

Nobody wants to fall into rental arrears, but unfortunately it happens. Times are tough, and the economic climate isn’t forecast to improve for some time yet, so it is all too common for tenants to default on their rental payments.

Arrear rentals - eviction lawyers

This is a stressful situation for both landlord and tenant and it must be approached with caution and a full knowledge of the rights of each.

What’s in the lease?

Depending on the specific lease agreement, in general, if a tenant is seven days late with their rental payment, they are then deemed, in the eyes of the law, to be in breach of the lease agreement.

It is up the landlord to inform the tenant in writing of the arrear rental, but the landlord does not have the right to immediately evict the tenant. Through this official notice, the landlord is giving the tenant the opportunity to resolve the breach of the lease agreement. A landlord can blacklist the tenant with credit bureaux at this point.

In general, if the tenant does not resolve the arrear rental within 20 days, the landlord can consider cancelling the lease, and suing for the arrears. The landlord may attach the tenant’s belongings in terms of the landlord’s tacit hypothec. They can also begin the eviction process. A landlord cannot evict a tenant without following the correct legal procedure. For that reason, if a tenant has defaulted on their rental payments, a landlord should obtain legal assistance as soon as possible.

Tacit hypothec

If a tenant falls into rent arrears, common law grants the landlord “tacit hypothec” over the tenant’s goods on the property. What does this mean in plain English? “Hypothec” is an old term, dating back to the 16th century and having its origins in French, which has survived in legal jargon and means “a right established by law over a debtor’s property that remains in the debtor’s possession”. Tacit means “implied” or “understood without being stated”.

When might the landlord’s tacit hypothec apply?

The provision for tacit hypothec is enshrined in Section 32 of the Magistrates’ Courts Act. Section 32 allows a landlord to apply for the attachment and, in certain circumstances, for the removal of a tenant’s movable goods in the leased premises, in lieu of rent owed. A landlord may choose to invoke Section 32 because it can be more effective than a rent interdict summons. Understandably, tenants will not want to see their possessions impounded and may respond more swiftly to this threat than to an interdict for payment of arrears.

How does it work?

The landlord applies to the Magistrate’s Court for an attachment under Section 32 in securitatem debiti – in other words, to secure the debt. However, if there is reason to suspect the tenant might abscond with the goods, the landlord can request an immediate order. This allows for removal of goods as security for unpaid rent without giving notice, because such notice could result in the tenant removing things in advance, thus rendering the landlord’s tacit hypothec worthless.

Burden of proof

It is the landlord’s responsibility to prove grounds for a Section 32 order. If the application is opposed and a dispute arises, resolution is based on the balance of probabilities. If this fails, there must be substantial doubt regarding the landlord’s case for the attachment to be set aside. Therefore, the landlord’s right to enjoy the rental income from a property is protected, but that right may not be abused by invoking Section 32 without due cause. In this way common law seeks to treat all parties equitably.

Costs and benefits of collecting arrears or invoking the tacit hypothec

As with anything in business, it’s important for landlords to weigh up the costs and benefits of any action taken. Loss of income through rental arrears is never pleasant but will the cost of recovering the lost rent be worth the effort? The benefit of invoking the landlord’s tacit hypothec is that it compounds the effectiveness of the eviction procedure. A tenant, particularly one with a history of flitting, may not be unduly fazed by an eviction notice. The threat of losing belongings may be taken more seriously. It adds litigation pressure and puts the landlord in a better bargaining position, resulting in more likelihood of the tenant meeting the rental demand. If the tenant has little of any value to attach, the landlord can apply for a long-term order. This is binding for 30 years against the occupier’s assets or salary, so there is no escaping!

On the other hand, there are legal costs involved. Although the tacit hypothec gives the landlord a bargaining chip, assets are not cash. It may be some time before the landlord can recover arrears and costs. If all else fails and the landlord takes the tenant’s goods to auction, to realise the rental arrears, the Sheriff costs can be in excess of R5 000. There are also storage costs to consider while holding the goods as collateral.

Time to cut one’s losses?

If the rental arrear is not substantial, e.g. R10 000 – 15 000, it may not be worth pursuing.  This is not to suggest that tenants should get away with not paying their rent. But if the proper procedures are followed, i.e. the tenant is given a chance to rectify the breach of the lease agreement, and the rent is still not forthcoming, it may be best to begin the eviction process and leave it at that. The sooner the recalcitrant tenant is off the property, the sooner a new occupier can be found and the income stream can start flowing again.

Eviction Lawyers South Africa can help

However, if your loss is significant, we can help you recover your rental arrears, using the landlord’s tacit hypothec if necessary Cape Town law firm SD Law & Associates are property and eviction lawyers in South Africa, with offices in Cape Town, Johannesburg, Durban and Pretoria. We uphold everyone’s constitutional rights and act for both landlords and tenants. If you’re a landlord with unpaid rent and you would like to take action, or if you are in rent arrears and think you may be subject to a Section 32 order, we can help. Contact Cape Town Attorney Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za.

Source: Eviction Specialists

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Eviction cost

How much does it cost to evict a tenant?

Eviction is an unpleasant word. It conjures up images of an uncaring landlord putting an unfortunate tenant out on the streets. It’s true that there are cases of unfair evictions. But for the most part, rental housing legislation now provides considerable protection to tenants and prevents the abuse of power by landlords that sometimes happened in the past.

Eviction cost - eviction lawyers

The law protects tenants…but it also assures property owners of certain rights. If you own property and it provides you with valuable income, you are entitled to enjoy your property and benefit financially from it without suffering misuse or abuse at the hands of your tenants. If the worst happens and you need to evict your tenants, what is the cost of eviction?

When should you consult an eviction attorney?

If the landlord-tenant relationship is harmonious, and both parties uphold the lease agreement, the word “eviction” is unlikely to arise. Eviction is the last resort when there is an unresolved breach of the lease. A breach can happen for a number of reasons, which may include failure to maintain the property or adhere to the conditions of the lease, but the most common cause for eviction is default in payment of rent. However, a landlord cannot simply evict a tenant for rent arrears. In fact, a landlord can’t evict a tenant at all. Only the courts can do that.

However tempting it may be to “do it yourself”, eviction is a legal process and it requires an eviction attorney. While you may wish to avoid eviction costs, delay in consulting an eviction lawyer can be a false economy. As the rent arrears pile up, you are losing money that may never be recovered. Spending money on expert eviction attorneys will ensure a speedier, smoother course of action and is likely to save you money in the long run – by limiting your losses and restoring the property to its income-earning status.

How much does an eviction cost?

The cost of an eviction will depend on the complexity of the situation. If a tenant is very stubborn and refuses to vacate the property, eviction costs can mount. An unopposed eviction will cost between R5 000 and R15 000. However, if the eviction is opposed, the cost can escalate to as much as R100 000 and the months can drag on. This is not a job for a layperson. Provided your eviction attorney follows the correct process, the court will award the eviction order – eventually – but getting the tenant out is another matter.

 

Call the Sheriff!

The court may grant your eviction order, but if the tenants simply dig their heels in and refuse to move, you may not legally remove them or their possessions from your property yourself. Only the Sheriff is authorised to do this. If you need the services of the Sheriff to forcibly effect the eviction, the cost will depend on the size of the property and the number of tenants. You can expect to pay from R1 000 to R10 000 in Sheriff’s costs.

Women and children first

Remember that PIE gives special consideration to vulnerable tenants – woman-headed households with children, the elderly and the disabled – so while you are not prohibited from evicting these tenants if they are in breach of the lease, you must allow them more time to find suitable alternative accommodation. This will add to your lost earnings and effectively increase the eviction cost, although it won’t generate additional legal costs.

Can you claim the eviction cost from the tenant?

While it may be technically possible to reclaim eviction charges from the tenant, in reality you are very unlikely to succeed in recouping your costs. If your tenant has defaulted on rent due to inability to pay, you may struggle even to recover the rent you are due. Expecting a financially stressed individual to come up with a five-figure sum in addition to unpaid rent is fanciful. You could sue for it, but the result will be the same. You can’t get blood out of a stone.

Consult a good eviction attorney

As we’ve highlighted, an eviction lawyer is essential if you have a troublesome tenant who doesn’t respond to reason and eviction is your only recourse. You can attempt to obtain an eviction order from the court yourself, but if you are not well versed in rental housing law your chances of success are much reduced. An eviction lawyer knows the intricacies of PIE and will make sure you don’t lose your case on a technicality.

Furthermore, an eviction attorney will save you money, despite the fee charged. If your rental income is R10 000 – R 20 000 per month it won’t take many months of rent arrears to lose you far more than your eviction will cost in legal fees. Cape Town lawyers Simon Dippenaar and Associates are experts in eviction law and will make sure your property is returned to its income-earning status as soon as possible! Contact Cape Town Eviction Attorneys on 086 099 5146 or email sdippenaar@sdlaw.co.za.

Source: Eviction Specialists

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Just and equitable evictions in South Africa?

“Justice? — You get justice in the next world. In this one you have the law.”

This is a proverb by the American novelist, William Gaddis, which unfortunately many times seems to be so fitting. This is especially so in eviction matters.

Eviction Attorneys Cape Town SD Law

Just recently, I had the sad experience of seeing my client’s hopes dashed once again because of the law being manipulated to the degree that it caused severe injustice.

My client bought a house that had been repossessed.

Now, that’s the first issue. Anyone looking to buy a repossessed house because it seems like a real bargain needs to be very careful, and should get good legal advice beforehand.

Tragically, my client’s daughter was killed by a taxi right in front of their home. She could not bear to live in that house with those terrible and vivid images, so she went to live with friends and immediately bought another house for herself and her other daughter.

The new house was to be a new start, but it turned out not to be the new start she’d envisaged.

It turns out that the house had an illegal occupant who was no novice at eviction matters. She has been living there for years, making a fairly good living from her home business, and managing to get the previous two purchasers to throw in the towel and to sell the property on. (Of course, the bank was home dry.)

Eviction law is meant to protect the vulnerable from being illegally evicted, but it can turn and bite the innocent and vulnerable home-owner and cause injustice.

The illegal occupant simply ignored all the papers that we served on her, and pitched up at court to ask for an extension, which she was granted. Under ordinary circumstances, she shouldn’t have been granted an extension, but housing is such an important issue, and is a right protected by the Constitution, that usually these requests are granted.

The law bends backwards to ensure that an occupant’s rights are not trampled underfoot, as was the case in pre-Apartheid SA.

Then the illegal occupant found an attorney to help her. The problem is that the attorney, while comfortably working within the law, has managed to cause numerous delays, has raised spurious defences, obtained postponements, and has racked up legal costs in the process.

These “tactics” can be absolutely soul destroying to those who are merely seeking justice. It ends up becoming a sort of attrition of their will to fight, their financial resources, and pushes them to simply throw in the towel. The result is that, while the law seeks to prevent injustice to the occupant, it often strips home-owners of their rights to housing in the process.

This is one of the imbalances in the law of eviction. My quest is to counter unethical delay tactics, and to ensure that justice is worked back into the law for the home-owner that is often left in the cold.

by Simon Dippenaar 

Simon Dippenaar & Associates Inc. is a law firm in Cape Town, Johannesburg, and Durban of specialised attorneys, including eviction attorneys assisting both landlords and tenants with the eviction process over residential, commercial or farm land. Contact us on +27 (0) 86 099 5146 or sdippenaar@sdlaw.co.za.

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Eviction Law – Changes

Eviction Law Changes - Eviction Lawyers South Africa

How Constitutional law is transforming eviction law

Eviction | The Constitution is the backbone of society and South Africa is fortunate to have “the most admirable Constitution in the history of the world,” according to Harvard law scholar Cass Sunstein. Our Constitution is unique in that it includes “positive rights” which require the State to enact policies that minimise inequality, free South Africans from discrimination and redress historical inequalities. Any legislation that contradicts the Constitution is deemed invalid.

The lie of the land

In terms of eviction law, these Constitutional principles are being applied by the Courts in an attempt to strike a balance between the rights of landowners and the rights of the landless.

Section 26(3) of the Constitution states that “no one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.” Section 26(1) of the Constitution further provides for everyone’s right “to access to adequate housing” and sets out the State’s obligation to ensure this right is upheld (Section 26(1).

Clearly it is residential evictions, regulated by The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE), and the rights of landowners that are most affected by the implementation of these Constitutional principles. Read more about PIE here.

So, although section 26(3) of the Constitution has not amended our common law, it does mandate legislation that impacts the common law rights of landowners. In addition, the Courts tend to place a greater burden on the applicant-owner where the State is the applicant.

Burden of proof

A landowner must prove ownership by producing title deeds for the property and must show that the defendant is occupying his property to ensure eviction. This is known as rei vindicatio. The onus then falls to the defendant to prove he has a valid right to occupation.

Majority of disputes about day-to-day tenancy

While changes to legislation have indeed contributed to greater social justice, there have been some negative side effects, such as the reluctance of landowners to provide housing for their labourers, uncontrolled squatting and an influx of rural residents into urban areas, with the associated health and safety hazards of overcrowding. But it is day-to-day tenancy issues and the maintenance of property values that comprise the vast majority of disputes, rather than the extreme cases of large-scale land invasions and the plight of the homeless.

Navigating your way through an eviction

Eviction law has developed significantly over the last few years and some procedures have changed because of the Consumer Protection Act. Recent cases also indicate that the same procedures must be followed in both the Magistrate’s Court and the High Court. Navigating your way through an eviction and making sure you follow the correct process can be daunting. So, whether you’re a tenant or a landlord, don’t try to go it alone.

We can help

At Cape Town Eviction Attorneys, SD Law & Associates, we are specialists in property law. Let us help you with the eviction process or other property matter. Contact Cape Town Lawyer Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za.

 

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