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Tag Archive: eviction lawyers

Lockdown level 4 – what now for evictions and moving house?

As lockdown restrictions ease, what does it mean for the rental market?

evictions - what happens under lockdown level 4

Lockdown level 4 – are evictions allowed? The easing of the rigorous lockdown rules that governed us for five weeks was met with rejoicing by most South Africans, particularly those with dogs and athletes who were missing their daily runs/cycle rides. More business categories are now deemed “essential” and some people have been able to return to work, albeit under very strict conditions. Most normal daily activities remain prohibited or restricted, but new rules were announced on 7 May, in Government Gazette 43293, allowing the movement of persons and goods under certain conditions. This includes moving house.

Let’s look at what you – whether you are tenant or landlord – can and can’t do under level 4.

Moving house during lockdown level 4 

As of 7 May, up until 7 June, you may move to a new property, provided the lease was signed before or during the lockdown period or the transfer of the property was completed before the lockdown. This includes movement across provincial borders. Furthermore, you may use public transport to effect the relocation, following all other directives that apply (e.g. wearing of masks). The precise wording of the directive is as follows:

2. The purpose of these Directions is to facilitate the movement of persons and goods within and across provincial, metropolitan or district boundaries during the period of Alert level 4.
(a) The movement of persons and goods, where –

(i) new lease agreements were entered into before or during the lockdown period: or
(ii) the transfer of immovable property occurred before the lockdown period, requires a change in place of residence. including the transport of goods to a new place of residence, within the Republic.

(b) The circumstances in subparagraph (a) require the once -off movement of persons who are relocating to their new place of residence, as permitted in terms of regulation 16(5): and
(c) The transport of goods within the Republic is permitted in terms of regulation
22(1)(f).

You must have a permit during lockdown level 4

If you qualify under these directions, you must secure a permit from your local police station, indicating the household members who are relocating. To obtain the permit, you must present your lease agreement or transfer documents, as detailed below. You must travel with all relevant documents in your possession.

3. (a) A person who needs to travel to his or her new place of residence and to transport goods, which are limited to household furniture and effects, as required by the circumstances in paragraph 2 of these Directions, is permitted to do so between the period 7 May 2020 to 7 June 2020.


UPDATE 15 May!! The cut-off date of 7 June has now been removed.


(b) A person referred to in subparagraph (a) must

(i) obtain a permit to travel across provincial, metropolitan or district boundaries from the station commander of a police station or a person designated by him or her The permit must correspond to Form 1 to these Directions;
This gazette is also available free online at www.gpwonline.co.za 4 No. 43293 GOVERNMENT GAZETTE, 7 MAY 2020
(ii) indicate the persons who are part of the household who will be required to move; and
(iii) have in his or her possession the relevant lease agreement indicating the date of expiry of the old lease and the date of commencement of the new lease, or the transfer documents attesting to the change in place of residence or change of ownership of property.

Rent during lockdown level 4

If the lease has expired, and the tenant is unable to relocate immediately, they must continue to pay rent, and the lease agreement becomes a month-to-month lease. However, if a tenant is having difficulty paying rent (whether the lease has expired or is ongoing), due to loss of income, TPN Credit Bureau has created a rental recovery pack, containing all the documents needed to negotiate a payment holiday and repayment plan with a landlord. Landlords placed in difficulty with bond payments due to loss of rental income should contact their lenders. Almost all South African banks have relief packages in place to help beleaguered borrowers.

What about evictions during lockdown level 4?

Here’s where there has been some movement. The moratorium on evictions introduced at the beginning of the lockdown (level 5, although we didn’t know that term then) remains. No one can be evicted from their home under level 4. However, an application for an eviction order may be brought before the courts, which are now able to hear cases and grant eviction orders. Sheriff services have resumed. The deeds office is open and consultations related to evictions will take place.  

Therefore, an attorney is permitted to prepare an order for eviction, which may be granted during level 4. However, the order is suspended and cannot be executed until the last day of level 4. At this point we do not know when that is. It is also important to pay close attention to the official information that accompanies the announcement of level 3. Although we currently understand that evictions will be lawful under level 3, we’ve seen already that the final regulations may vary considerably from the draft or anticipated rules. 

Be like a boy scout – be prepared

If you are a landlord with outstanding tenant issues, and you were intending to commence or had already commenced eviction proceedings prior to 27 March, now would be a good time to consult with a good eviction attorney and prepare your case. You will not be able to complete the process until such time as evictions are again permitted, but you will beat the rush that is sure to ensue when the ban is lifted. We anticipate the courts will be busier than usual, as many matters have been put on hold, so you could wait a while to have your case heard. If the grounds for eviction are non-payment of rent (prior to lockdown, not caused by it), then you will delay even further the time when you can legally replace your non-paying tenant with a paying one.

Don’t be in a hurry to evict good tenants

If your tenant has previously been fully compliant with the lease agreement and has always paid rent on time, but has defaulted on rent payments due to the lockdown, we urge you to take a more sympathetic stance. Allow the tenant time to negotiate a plan with you. You may even consider waiving a month’s rent, as many landlords have voluntarily done. As recession bites, rental yields will be subdued, even if demand for properties is present. If it takes a month or two to find a new tenant, that is lost income, and you may even find you have to drop the rent to attract tenants. Better to accept an equivalent loss of income from a good tenant than to expose yourself to the unknown.

The advice of an eviction lawyer is essential – for landlords and tenants alike

SD Law & Associates are specialists in rental housing and eviction law. If you are a landlord and need help navigating these uncharted waters, we can provide expert assistance. 

If you are a tenant and are worried about your current situation, we will look into your case and advise you of your rights and your best course of action.

Contact Simon on 086 099 5146 email simon@sdlaw.co.za.

Further reading:

 

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Time to hit the “pause” button on evictions?

Elsewhere in the world legislation is ensuring tenants don’t lose their homes due to COVID 19.

Time to hit the "pause" button on evictions. Eviction Lawyers

As if we didn’t have enough to worry about. COVID 19 is making everyone anxious for their health. Although the vast majority of patients recover, in South Africa we have a very vulnerable population and a weak health system, so widespread infection will wreak havoc in families and communities. Furthermore, those who have recovered describe the illness as extremely unpleasant, leaving them very weak for a considerable time. It’s to be avoided at all costs, hence the severe restrictions we are all living under and the lockdown that we are about to begin.

Beyond the literal threat the virus presents to health, up and down the country businesses have been closing, particularly in hospitality, and now all activities but essential services must cease while we all stay indoors for three weeks. If employers can’t afford to pay wages, employees will be sent home with no income. How, then, are they meant to pay their bills, including rent?

Some lenience on loan re-payments

As of 23 March, all the major banks have announced some provision for hardship caused by COVID 19. Standard Bank has announced a three-month payment holiday for small businesses with a turnover of less than R20 million, and for full-time students with student loans, to start on 1 April and run until 30 June. For other loans, including mortgage bonds, customers are urged to contact the bank. The other major banks are also assessing the situation and either inviting customers to contact them individually or waiting to see if they need to take more radical steps.

What about tenants?

Homeowners with bonds can hopefully expect some mercy, but what about tenants with rent to pay? In places where the pandemic has a tighter grip, legislative measures have been put in place to protect renters. Around the world, cities in the US and countries including Spain have temporarily halted evictions in response to the COVID 19 pandemic.

In England and Wales, the Housing Secretary has said, “Emergency legislation will be taken forward as an urgent priority so that landlords will not be able to start proceedings to evict tenants for at least a three-month period.” Up in Scotland, similar action is proposed. The Housing Minister said, “No landlord should evict a tenant because they have suffered financial hardship due to coronavirus and we are actively considering how best this can be addressed.”

A spokesperson for a tenants’ association said: “Up and down Scotland, tenants are facing not just a major health crisis, but the prospect of destitution and homelessness too. As their workplaces begin to shut their doors, it is hard to see how tenants who are already struggling to make ends meet will be able to pay their rent. It is unconscionable that anyone should even have to worry about being evicted from their home at this time.”

The situation here in South Africa is similar, and arguably will be worse, given our levels of poverty and disadvantage. At SD Law we support the 31 NGOswho have come together to appeal to President Cyril Ramaphosa, his Cabinet and Chief Justice Mogoeng Mogoeng to follow in the footsteps of our international counterparts and forbid evictions during the current crisis. After all, in a lockdown, it makes no sense at all to put people out on the streets.

Stop the “ejectment” if not the eviction

We understand that there may be situations where the eviction is not only legitimate, but long overdue. Perhaps a tenant has significant arrears with rent or has damaged the property. We’re not advocating for the entire eviction process to be overturned in these circumstances. A fair and just procedure can be resumed in due course, when life returns to normal. But this is not the time to execute a warrant of ejectment, i.e. to put the tenant out.

Look after good tenants

We would also urge landlords to exercise leniency in the case of good tenants who suddenly cannot pay their rent because they have lost their jobs or income due to COVID 19. If a tenant has a history of timely payments and full compliance with the terms of the lease, they should be treated compassionately and a repayment plan worked out when the crisis is past.

From a purely commercial perspective, even if the appeal to our shared humanity is in vain, evicting a good tenant because they can’t pay their rent is unlikely to result in replacement income. No one is looking to move right now. And a property could sit empty far longer than the time it takes for the existing tenant to recover. Good tenants are worth looking after.

Update 27 March:

In the government gazette released last night (26/3/2020), all evictions and execution of attachment orders, both movable and immovable, including the removal of movable assets and sales in execution are suspended with immediate effect for the duration of the lockdown.

Update 26 March:

As we head into a lockdown that will straddle two months, you may be wondering what will happen if a lease expires during the three-week period? In short, no movement is allowed. A tenant cannot be forced to leave a rented property even if another tenant is lined up to move in. The incoming tenant also won’t be able to vacate their current premises. The extraordinary measures in place (see the government gazette for full list of restrictions) take precedence over other contracts in place, such as leases. Technically, landlords and tenants can pick up where they left off as soon as the lockdown is over, but in reality it may be easier for everyone simply to extend the lease by one month and push the moving-out or moving-in date back to 1 May. Everyone in the country is in the same situation.

Rent should still be paid for any occupancy beyond the lease expiry. If  the tenant is in financial difficulties, then a payment plan should be negotiated.

We’ve mentioned a “pause” on evictions to protect tenants who may be financially compromised as a result of COVID 19. But what about evictions that were already scheduled before this crisis emerged? Although the gazette does not mention eviction specifically, it is fair to assume that no movement means no movement. In effect, normal life is put on hold – paused – for three weeks. it will resume on 17 April.

Contact Eviction Lawyers for help

We are eviction lawyers in Cape Town and Johannesburg.  We act for both landlords and tenants and uphold the rights of each to a fair and satisfactory tenancy. In these uncertain times, we appeal to everyone to act with empathy and compassion. If you are worried about your tenancy or your tenants, contact Simon at Cape Town Eviction Attorneys on 086 099 5146 or email   simon@sdlaw.co.za.

Further reading:

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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 simon@sdlaw.co.za for a confidential discussion today.

Source: Eviction Lawyers South Africa

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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 simon@sdlaw.co.za

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