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Tag Archive: eviction lawyers Johannesburg

Lockdown rights enforced for residents of informal settlements in Cape Town

The power of social media is immense. So much more than a mere communication tool, it’s a cornerstone of citizen journalism and can be one of the most effective ways in which ordinary people can tell important stories as they happen. What’s more, content posted on social media can be the grounds for legal action and meaningful change, as a case concerning lockdown rights recently heard at the Western Cape High Court clearly showed.

The naked man

On 1 July 2020, a video of a naked man being dragged out of his shack in an informal settlement in Khayelitsha went viral on social media. The man concerned, Bulelani Qolani, was removed from his home by City of Cape Town officials who were members of the Anti-Land Invasion Unit (ALIU). They destroyed his home shortly afterwards.

The ALIU is a specialised unit tasked with deciding which structures should be demolished on land they claim has been invaded. This work is conducted without a court order and typically refers to homes in informal settlements, which means that it usually affects some of South Africa’s most vulnerable people.

The video caused an outcry. It reminded people of the brutal forced removals that took place during apartheid, and demands for the judicial oversight of evictions and demolitions during the national state of disaster were heard. The South African Human Rights Commission (SAHRC), a state institution that is mandated to promote respect for human rights, stepped forward in response.

Together with the Housing Assembly and Bulelani Qolani, the SAHRC brought a case against the City of Cape Town as well as the Minister of Human Settlements, the Minister of Co-operative Governance and Traditional Affairs, the National Commissioner of the South African Police, the Minister of Police and the Western Cape Provincial Commissioner of the SAPS.

Lockdown rights infringed – not an isolated incident

The incident that occurred in Khayelitsha on 1 July wasn’t the only one of its kind. In fact, there were several others that took place during alert levels 3 and 4, despite that fact that evictions were meant to be suspended until the last day of the alert level period.

Some of the demolitions and evictions that occurred were as follows:

  • On 9 to 11 April 2020 in Empolweni Informal Settlement in Makhaza, Khayelitsha, the ALIU demolished structures on land owned by the City. Urgent relief was given by the Western Cape High Court to a number of residents whose structures were demolished. On 17 April, the court granted an interim order, ordering the City to return building materials confiscated from Empolweni and authorising residents to re-erect and occupy structures there for as long as the lockdown continues.
  • On 15 May 2020 in Ocean View, Kommetjie, evictions and demolitions took place on land that is privately owned by the Ocean View Development Trust. The City denied that evictions were conducted at the time, and said that ALIU had acted within its mandate to demolish illegally erected structures provided that they were unoccupied.
  • On 29 June 2020 in Hangberg, Hout Bay, the SAHRC received a complaint alleging that City officials had demolished a structure. The Western Cape High Court declared the City’s conduct unlawful and unconstitutional and emphasised that home demolitions could not be carried out without a court order during alert levels 3 and 4.
  • On 13 July 2020 in Zwelethu, Mfuleni, structures on land owned by the Western Cape Nature Conservation Board in Mfuleni, which joins city-owned land, were demolished. Many of the area’s residents are desperately poor and unemployed and have been the subject of at least seven evictions carried out without a court order.

“Bleeding and in pain”

Of course, there was also the incident that received the most attention – the one that took place in Khayelitsha on 1 July. The official court papers refer to the affidavit that Bulelani Qolani gave, in which he states that while the law enforcement officers were approaching, he went inside his home and prepared to bathe: 

“He stood outside his dwelling naked and asked to be allowed to finish his bath. The law enforcement officers sprayed his neighbour with pepper spray and forcibly gained entry into Mr Qolani’s dwelling, carrying batons and guns. On entering his structure, they were already pushing up the roof to tear it apart. 

“He asked to be shown an eviction order and told them it was illegal to evict during the lockdown period. They ignored his requests, he said, handled him physically and violently, pepper sprayed him and forcefully removed him from his house, whilst still naked and in full view of residents. As Mr Qolani tried to re-enter his house, he states they shoved him to the ground and one official knelt on his back while another held him down to stop him moving.

“Eventually, after quite a struggle, Mr Qolani got back into his house and sat on his bed, his head bleeding and in pain. Whilst he was still inside, he states, the demolition was completed.”

A precedent-setting judgment

On 20 and 21 August 2020, the case between the SAHRC as the first applicant and the City of Cape Town as the first respondent was heard at the Western Cape High Court. And on 25 August 2020, judgment was delivered.

In their judgment, Judges Shehnaz Meer and Rosheni Allie declared that the City of Cape Town ALIU will not be allowed to evict people or demolish occupied or unoccupied structures without a court order while the country remains in a state of national disaster. This landmark ruling is binding in the Western Cape and may set a precedent for other provincial courts too.

What’s more, if any evictions or demolitions are conducted with a court order in place, these must be conducted “in a manner that is lawful and respects and upholds the dignity of the evicted persons”. City officials are expressly prohibited from using force, the judges decreed, and from destroying or confiscating any material on the property concerned.

SAPS members will now have to be present during evictions and demolitions to ensure they are done lawfully, in line with South Africa’s Constitution and “in accordance with the SAPS’ constitutional duty to protect the dignity of the persons evicted”. In addition, the City was interdicted and restrained from considering, adjudicating and awarding any bids or tenders received in response to a tender specifically focused on the demolition of illegal formal and informal structures in Cape Town.

The court ordered the City to return all building material and personal possessions taken by the ALIU since 1 May, and to pay R2,000 to the people identified by the Economic Freedom Fighters.

But there’s more to come. In October, additional hearings will be held to determine whether demolitions or evictions can take place without a court order once the state of national disaster has ended. It’s likely that an important conversation has begun.

Contact us

Simon Dippenaar & Associates, Inc. is a firm of specialist eviction lawyers, based in Cape Town and now operating in Johannesburg and Durban, helping both landlords and tenants with the eviction process. Contact one of our eviction attorneys on 086 099 5146 or sdippenaar@sdlaw.co.za if you need advice on the eviction process or if you are facing unlawful eviction.

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Housing giant denies illegally evicting Rondebosch tenant

Cape Town – Social housing giant Communicare has dismissed claims that a Rondebosch tenant was unlawfully evicted.

Karabo Makgoane, who lived at the Welverdiend complex, claimed that she was unlawfully evicted by Communicare because the organisation was supposed to give her alternative accommodation.

“I have been living in the Welverdiend flat since 2017. I was retrenched and told the landlord, but he said that under no circumstances would they help me. I was then paying half of my rent until October 2018. I got served a court letter, and my first court appearance was in 2019. I did not have a legal representative.

“On May 2, I was evicted by a magistrate, who said I could leave on November 30 because of my circumstances. I was expecting Communicare to get back to me regarding alternative accommodation, as was requested by the magistrate.

“On November 30 nobody had said anything to me. I stayed because I was expecting Communicare to tell me about alternative accommodation arrangements,” said Makgoane.

Communicare spokesperson Michelle Matthee said the company had tried to accommodate her when she fell into arrears.

“The tenant has considerable arrears, well over R100 000, arising from non-payment of rental. The tenant also did not uphold previous payment agreements. After the court heard the matter, the eviction order was issued on May 21. As is reflected in the court order, Communicare was not instructed to find alternative accommodation for Ms Makgoane.

“The issue with Ms Makgoane began 18 months ago. We eventually had no other option but to hand the issue over to the courts. After a lengthy court process, on February 18, the sheriff of the court carried out an eviction of Ms Makgoane, as ordered by the court,” said Matthee.

Reprinted from the Cape Times – 2020-02-21. Emphasis/links by SD Law.

If you are not sure if your eviction is fair, we can help

We are eviction lawyers in Cape Town and Johannesburg, and we believe the landlord-tenant relationship should be built on trust. We act for both landlords and tenants and uphold the rights of each to a fair and satisfactory tenancy. If you are facing an eviction and you are not sure of your rights, contact Simon at Cape Town Eviction Attorneys on 086 099 5146 or email sdippenaar@sdlaw.co.za.

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When and how to sue a tenant

Is it worth your while to sue your tenant for rent arrears or other costs?

sue tenant eviction lawyers

There are many ways in which a tenant can breach the terms of the lease, triggering the eviction process, but by far the most common is non-payment of rent. While you may succeed in evicting the non-paying tenant, eviction itself may not result in settlement of the outstanding debt. To recover your rental arrears, you may have to take to the courts and sue your tenant.

Why you might sue your tenant

Unpaid rent is the most obvious and the most common cause for litigation, but there are several other reasons why you might need to bring court action against your tenant or former tenant. Here is a fairly comprehensive list of grounds for a lawsuit, but there could be others.

  1. Unpaid rent: By law, if your tenant fails to pay the rent on time, you must notify them of your intention to cancel the lease and give them 20 working days to rectify the breach. If they fail to do so, then you can apply to the court for an eviction notice. Remember only the Sheriff can evict a tenant. However, you can sue them for the unpaid rent.
  2. Unpaid utility billsIf the tenant vacates the property, either via eviction or lease cancellation, any outstanding utility bills in the tenant’s name can be recovered. The first option is the security deposit. However, this may be inadequate to cover the amount owing.
  3. Damage to the property: Inspection of the property at the beginning and end of the lease is a vital step you must not overlook. You will only be able to claim that a tenant has caused damage to your property if you have conducted a thorough inspection and compared the moving-out state with the condition of the unit on entry. If the tenant has indeed caused damage, you can deduct the cost from the security deposit. If this is insufficient (and it will be if there is also unpaid rent), you can take your tenant to court.
  4. Unapproved alterations: The scope your tenant has for making alterations to the property will be dictated by the lease. However, any building alterations must be approved by you as the landlord. If the tenant has carried out work without your approval, you can sue the tenant for the cost of restoration.
  5. Tenant owes more than security deposit amount: If, for any of the reasons above, the security deposit has been exhausted and you are still owed money, you can take to litigation to recover the rest.
  6. Recovery of lost rent if your tenant does a flit: If your tenant moves out before expiry of the lease, you are entitled to any rent they failed to pay as well as the remaining rent due on the lease. This is effectively lost income to you and they have a legal obligation to honour the lease if they did not terminate it through the proper channels.
  7. Cost of finding a new tenant: If your tenant moves out early without your agreement, you may need to find a new tenant urgently, if you rely on the income from the property. You may be able to claim compensation for the cost of advertising and credit checking new tenants.
  8. Expenses incurred in storing or disposing of abandoned property: As discussed in Abandoned Personal Property: What Should a Landlord Do?, you cannot dispose of a tenant’s property immediately. Therefore, if you incur storage costs and/or ultimately have to pay for disposal, you can sue the tenant for this cost.
  9. Tenant used the property for illegal activity: If you discover that your tenant used your property for an illegal activity, you can sue them to recover damages. However, unless the police have been involved, your suspicions may be difficult to prove.
  10. Keeping a pet against the terms of the lease: If your lease stipulates “no pets”, but the tenant has kept an animal on the property, you can sue for damages (this is a breach of the lease agreement) as well as for any damage actually caused by the pet (dirty walls, stained carpets, etc.). As above, the security deposit may cover the damage; then again it may not. But you will need proof, e.g. photographs of the pet. It may be difficult to claim that a dog caused a stain if you do not have evidence of a pet on the premises.
  11. Any other breaches of the lease: If the tenant has broken any other clause of the lease, resulting in financial loss or emotional or physical harm to you, you may need to claim compensation through the courts.

Possible benefits

Lawsuits are expensive, time-consuming, and stressful. If there is any other option for recovering money you are owed, a good eviction lawyer will usually advise you not to sue. However, there are potential positive outcomes from litigation that are worth bearing in mind.

  • Firstly, it is sometimes sufficient to threaten to sue. Often, on receipt of a court summons, the respondent will suddenly become very willing to negotiate and you will wind up settling out of court. They may know they will lose, or they may just want to keep their name off the court records. Their negotiation may seek a compromise and you may not succeed in recovering all your costs, but this may be a price worth paying to bring the matter to a close and avoid the hassle of a court case.
  • On the other hand, sometimes taking a tenant to court is the only way to recover your money, particularly where there is a dispute over damages. Without the force of the law, it may be difficult ever to see the money owed to you. In the case of damages, the entry and exit inspection reports, with photos, are essential to your case.
  • You may also wish to claim for additional damages. For example, in the case of #6 above, where a tenant vacates the property before the expiry of the lease, you can sue them for the rent remaining on the lease and possibly the cost of finding a new tenant.
  • If there is a risk that your tenant may malign your reputation as a landlord, even if you have acted entirely within the law, suing your tenant and winning is legal proof of your upstanding position.
  • Finally, your case against a trouble-making tenant will be on the record, should they ever try to sue you in future. A successful lawsuit is evidence that you have followed proper procedures and upheld all the laws regarding rental housing.

Risks

Of course, no action is without risk. We’ve outlined the benefits of litigation, but you should be aware of the risks as well.

  • Obviously, you might not win! Even if you feel you are in the right, there is no guarantee that you will win. Of course, a good eviction attorney will make sure you are fully prepared and have all your evidence in order, thus improving your odds. But it’s all down to the judge on the day.
  • Winning doesn’t automatically mean you will be paid. The tenant will have a court judgment against them, but collecting the money is another matter!
  • Litigation is costly, whether you win or lose. There is the court fee to pay, and the cost of an eviction attorney. You could represent yourself, but your chance of success is much greater with expert legal representation.
  • This is less likely, but you might provoke your tenant into a countersuit. If you lose, you might wind up having to pay out money to your tenant in court costs and legal fees. Again, if you engage the services of an experienced eviction lawyer, this is unlikely, but you should be aware of the risk.

Let Cape Town eviction lawyers help

If your tenants have left you high and dry and you need to recover money owed to you, either through the courts or out of court, contact Eviction Lawyer Cape Town, now also in Johannesburg and Durban. We are experts in eviction law and will ensure that you follow the proper procedures. We have an excellent track record in helping landlords and, with us on your side, the probability of getting your money back is excellent. Call Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za for a confidential discussion today.

Source: Eviction Lawyers South Africa

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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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