Category Archive: Eviction

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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Eviction – when your tenant is also your employee

In South Africa it is not uncommon for employees to be tenants. This is most often the case when a domestic worker or gardener occupies a cottage on the property of their employer. Usually the accommodation is part of the remuneration package, and often the employer pays the utilities and sometimes even provides food. The dual nature of the relationship can make things complicated if it becomes necessary to terminate one or other of those contracts, but in law the situation is straightforward.

We’ll look first at the simple application of the law, and then consider a couple of alternative scenarios.

Employment terminated

In the simplest scenario you terminate the employment of your domestic worker, including accommodation. You must give reasonable notice, compliant with the terms and conditions of employment (e.g. you may have agreed a contract stipulating 90 days’ notice). If you wish to terminate the employment prematurely and the Basic Conditions of Employment Act applies, you must give one month’s notice of termination. The employee is then required to vacate the premises provided, unless other provisions have been made. In the event of premature termination of a contract, the employee is entitled to accommodation for one month, or longer, according to the outstanding period of the contract.

Employment terminated, accommodation is extended

But perhaps the contract of employment is concluded, or the employee retires or is sick and unable to work. Their replacement does not wish to live on your premises and therefore the accommodation does not need to be vacated. You are happy for the former employee to remain a tenant. In this case the employee becomes a conventional tenant. You draw up a lease as you would for any other tenant. Whether you charge a rent or allow them to stay as a “grace and favour” tenant is between the two of you, but it is still advisable to have a written lease in place. Some families promise accommodation for life to a loyal domestic worker. If you have made this commitment in the past you are obliged to honour it, whether or not it was in writing.

Employment continues, lease is cancelled

On the other hand, you are very happy with your domestic worker, but your daughter is returning from varsity and wants to live in the property currently occupied by the employee. You wish to cancel the lease but retain the employee. In this case you are bound by the Rental Housing Act and the Consumer Protection Act. Firstly, you must check the lease agreement (or the employment contract, if the provision of accommodation is an integral part of that and not a separate agreement). You must then give notice in accordance with the provisions of the lease or employment contract. See our article Lease Agreement – How To End It With Dignity. If there is no specified notice period given, you must give one month’s notice (20 business days to be compliant with the CPA).

Eviction

If the tenant refuses to leave as requested, you may then resort to eviction. You must comply with all the statutory measures and procedures that apply to your situation, i.e. if the property is in an urban area, the Prevention of Illegal Eviction (PIE) applies (see our article on PIE). If the property is in a rural area and is subject to the Extension of Security of Tenure Act (ESTA), then the provisions of that Act must be followed.

Bear in mind that if you have to evict your employee from your property, you will place your working relationship under severe strain, making it difficult for you both to continue as employer and employee. Try to resolve the situation without resorting to eviction if you can. It may mean being flexible with the notice period to allow your tenant time to find alternative accommodation. Be aware that they now may have to travel a distance to work and be sensitive to how that might impact their start and finish times. Review the employment contract to reflect the new live-out status and consider the implications for total remuneration. If accommodation was provided gratis as part of the package, you will need to revisit the wage you pay. Make sure all contracts are up to date and represent fair and reasonable employment practices.

Take professional advice

If you need help with any aspect of lease agreements or employment contracts for your domestic workers, we can help. Cape Town Eviction Attorneys, Simon Dippenaar and Associates are experts in property and contract law. We will make sure you are fully compliant with all relevant regulations. Contact Cape Town Attorney Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za.

 

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Eviction process challenged in court – the PIE gets teeth

Eviction process challenged in court

Court ruling suggests more active judicial management of the eviction process

Eviction process – Property owners and tenants alike have rights under South African law; and when an eviction notice has to be served, it is important to consider the rights (and responsibilities) of both parties, to be sure that fair and just treatment is accorded to everyone. Our Constitution exists to protect all citizens and ensure a rights-based approach is taken in matters of legal dispute. An eviction notice that came before the Constitutional Court last year provides a test case for the accountability of housing lawyers and the judicial system in safeguarding the rights of the most vulnerable in our society.

In the the case of Occupiers of Erven 87 & 88 Berea v De Wet, Christiaan Frederick N.O. and Another, appeal was made under the PIE Act to the ConCourt after the High Court refused to rescind an eviction order. Here we look at the facts of the case and draw some conclusions from the judgement.

 

History of the eviction notice

An abandoned block of flats in Berea, Johannesburg, was purchased by a new owner following liquidation of the former landlord. The building was occupied by 184 residents at the time, some for as long as 25 years. In order to carry out renovations and restore the building to residential letting standards, the purchaser wished to evict the sitting tenants and served them with an eviction notice, following the procedures set out in PIE.

The 184 occupiers were represented in court by four of their peers, who were known as the “Appearer Occupiers”. These Appearer Occupiers asked the court for a postponement of the hearing to give them time to seek legal advice and representation. However, when they appeared in the High Court, they consented to a draft eviction order, leaving the remaining 180 occupiers somewhat stunned. The occupiers sought their own legal advice and applied to the High Court to have the eviction order rescinded. The High Court turned down the application, on the basis that the eviction notice was not in contravention of PIE and the eviction court had discharged its duties faithfully.

A further application for leave to appeal was refused by the High Court and the Supreme Court of Appeal.

 

What happened next?

The case was based on a series of misunderstandings. The Appearer Occupiers said they had not consented to an eviction order. They argued that even if they had consented, their consent was not legally valid; and the court had an obligation to ensure the fairness of any eviction order in the light of all relevant circumstances. They maintained that the eviction order should have been rescinded.

The Respondents argued that the applicants had lost the right to appeal because they had agreed to the eviction order in the first place. They also said there was no evidence that the occupiers would be made homeless or that they had made any attempts to find alternative accommodation. Therefore the eviction process was fair and an appeal was not warranted.

 

What did the judges consider?

The Constitutional Court reviewed the judicial oversight functions of the eviction courts under PIE. How great a duty does an eviction court have in determining the validity of the mandate between the occupiers and their representatives? How far should the eviction court go to ensure the consent is legitimate? In this case, were the non-Appearer Occupiers within their rights to request the eviction order to be rescinded?

 

The ConCourt decision

The Constitutional Court ruled that where legal representatives consent to judgements without proper authority, the judgement is not valid. In other words, the Appearer Occupiers in this case knew the main body of occupiers needed time to seek legal representation, but the Appearer Occupiers did not allow for this in the eviction process. In the face of the resulting eviction order, the occupiers “had no legal representation when the order was obtained against them,” according to the Court. The Court also held that the occupiers’ consent to the eviction order should have been given “freely and voluntarily with the full awareness of the rights being waived,” and this did not occur. The occupiers were not aware of their rights and therefore the consent they gave to the postponement could not be considered informed consent in the light of the eviction order. Informed consent is a guiding principle of the Constitution. As a result, the Appearer Occupiers’ consent was not binding on the occupiers.

 

Conclusion

The ConCourt judgement raises some interesting questions and may signal a new role for the courts in matters of eviction. It reinforces the function of the courts in protecting the poor and vulnerable in our society. This case places an increased burden on the courts and property owners, the latter now having to ensure a legally valid and binding mandate exists before Appearer Occupiers can enter into court-ordered agreements.

The courts may now have to scrutinise eviction applications carefully to prevent any ambiguities between Appearer Occupiers and the occupiers they represent when resisting an eviction application. This would seem to be a victory for social justice; with this judgement the Constitutional Court is refining its stance on active judicial management of eviction applications. Whether this leads to fairer, more just outcomes for all parties or simply brings the process to a grinding halt remains to be seen.

 

Need help with an eviction notice?

If you are a landlord facing litigation be aware that the courts will be more rigorous in exercising their judicial functions. We act for both landlords and tenants and know the challenges faced by both parties. Visit Eviction Specialists

Do you want to know more about the cost of residential eviction? We explain it here.

We have an intimate knowledge of the legislation from both sides, so if you need help navigating the eviction process, whether as landlord or tenant, call us now on 087 550 2740 or contact us.

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