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Tag Archive: landlord

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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Eviction – when can you evict a tenant?

The eviction process protects tenants, but landlords still have rights, even during the festive season

You don’t want to make your tenants homeless over the festive season, but if they fail to pay rent you are entitled to start the eviction process.

Ah…the festive season. Time for beach holidays, road trips, and long, lazy lunches. But it’s also a time of overspending and overconsumption. When the finances don’t quite stretch to the seasonal indulgences, tenants may renege on their obligation to pay rent. If you’re filled with goodness and mercy you may overlook this…for a while. But when it hits your bottom line you have a right to take action, all within the law.  A tenancy agreement is a contract. There are contractual rights and obligations on both parties. To protect your asset, you may have to initiate the eviction process.

The eviction process explained

It’s called a process for a reason. There are multiple steps involved and you must follow them in order. If you do not, you could find yourself in trouble with the law. Rental housing legislation is covered by several acts: the Rental Housing Act (and Rental Housing Amendment Act 2014), the Prevention of Illegal Eviction Act – PIE, and the Consumer Protection Act – CPA. Where the provisions of one are more generous, i.e. offer more protection to the tenant, that act prevails. In most cases the CPA has the last word. Eviction is a legal process that must be conducted via the courts and requires an eviction attorney. A landlord cannot evict a tenant without going through due process of law. 

How to evict a tenant

Assuming there is a written lease agreement in place (and even if there is not – see Verbal Lease Agreements), a breach of the conditions of the lease is sufficient cause to cancel the lease. The most common cause of lease cancellation is rent arrears. While there are circumstances that might invite you to exercise leniency, e.g. your tenant has lost their job, if you are faced with non-payment of rent purely because they have overspent at Christmas, you may be less inclined towards patience. But be aware that the law is particularly sympathetic to vulnerable people, such as children, the elderly, disabled people, or woman-headed households.

Cancelling a lease

You must give the tenant notice of the breach and a chance to rectify it…in the case of rent arrears an opportunity to make good the rent due. This is done by way of a warning in writing, giving the tenant a specified amount of time in which to remedy the breach. The time frame will be determined by the terms of the lease. If not specified, it will be 20 working days, in accordance with the CPA. If there is no written lease, the landlord must give a full calendar month’s notice. If the tenant pays up (and does not repeat this breach month after month), the matter is finished and harmony is restored.

However, if the breach is not remedied, the next step is to serve a letter of cancellation on the tenant. With luck, the tenant vacates the property at the end of the notice period. If so, you are free to find another tenant – hopefully one who can pay the rent! However, should the tenant disregard the lease cancellation, you may decide to start the eviction process. At this stage an eviction lawyer is required.

Next step – eviction 

You must apply to the court to have an eviction notice served by the sheriff on the tenant – who is now considered an unlawful occupier rather than a tenant. A court date is set and a deadline given for filing an opposing affidavit (if the unlawful occupier wants to oppose the eviction).

In court, the order will either be granted or the case will be postponed for further fact-finding. In the case of vulnerable individuals, the court may wish to be satisfied that the unlawful occupier can find alternative accommodation and/or that you have behaved fairly and reasonably throughout.

If the court is satisfied that the case for eviction is sound, the tenant/unlawful occupier will be given time to vacate the property. Only if, despite this process, they fail to vacate the property within the specified period, will the sheriff will be authorised to remove them and their belongings from the property. The cost of this will be borne by the tenant. You may not change the locks, physically remove personal property, or behave in a threatening way toward the tenant, however recalcitrant the tenant may be. Only the sheriff may take any physical action against the tenant.

Legal advice is essential

If you want to evict a tenant, you need legal representation by an experienced attorney. You can issue a notice of lease cancellation yourself, but expert advice is strongly recommended, to ensure you comply with all rental housing legislation. The law is partial to the rights of tenants, given the abuses of the past, and it is easy to fall foul of your obligations as a landlord without realising it. Simon Dippenaar and Associates, Cape Town eviction lawyers, now in Johannesburg and Durban, are specialists in rental housing law and will safeguard your rights, while also ensuring your tenants are treated fairly and with dignity. Contact Simon on 086 099 5146 or email simon@sdlaw.co.za.

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