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Eviction orders

No lease? No problem. Tenants still have rights

By | Eviction orders, Evictions, Lease Agreement, Rental Housing Act

Rental housing legislation provides tenants with protection, whether or not there is a written lease

Landlords must follow the legal procedure for eviction. Know your rights as a tenant.

It’s not best practice, but it often happens that a landlord and tenant do not have a written lease agreement. In the digital age, when everything is captured online and on cell phones, it is understandable to assume this means there is no lease. However, the Rental Housing Act does not require a lease to be in writing, although it is strongly advised. A verbal agreement between the parties constitutes a lease agreement, even if that conversation consists of no more than a statement of the monthly rent and the amount of time the property may be occupied.

So when we talk about “no lease”, what we really mean is no written lease. And, although the tenant still has rights under the law, the absence of clarity surrounding the terms and conditions of the tenancy can lead to disputes and confusion. But it does not mean the eviction process is any less stringent.

One reason why a tenant might not have a lease

There are two scenarios in which the tenant might not have a written rental agreement, and the eviction process is slightly different in each case. The first is where the landlord and tenant have agreed the terms of the occupancy informally, and perhaps shaken hands on the deal. They may be friends or family members with a harmonious enough relationship to consider a legal document unnecessary, or the property may be a cottage in the garden of a homeowner who takes an informal approach to letting it out. This won’t be permitted for much longer, as we will come on to, but at present it is not uncommon.

Another reason for no lease

The second scenario is where a lease has expired, but the tenant has the landlord’s permission to remain in the property on a month-to-month basis. In some countries this is called a “tenant-at-will”. This might occur because a tenant has purchased a property and is waiting on an entry date; or the property owner is planning to sell and does not want to commit to a lengthy lease period but is happy for the tenant to occupy the property while seeking alternative accommodation. Or there may be minor breaches to the lease that are not serious enough to cause the landlord to evict but nonetheless they do not wish to renew the lease. The tenant may be allowed a few extra months on a month-to-month basis to avoid homelessness while seeking alternative accommodation.

Implied leases

If a lease expires and the tenant continues to pay rent, and the landlord continues to accept it, without spelling out the conditions noted above, they have effectively created a new, implied lease. There are also certain fixed-term leases that become implied month-to-month leases after expiry, in terms of the Consumer Protection Act (CPA). By law, the payment and acceptance of rent after the official end of the lease implies that a new lease has been agreed.

Eviction with a verbal lease

The eviction process where there is a verbal lease is identical to the process for a written lease. The Prevention of Illegal Eviction Act from and Unlawful Occupation of Land Act, No 19 of 1998 (PIE Act) ensures that landlords follow a clearly defined set of actions, and there must be due cause. No one can be evicted without reason or notice. There must be a breach of the lease agreement. In the absence of a written document setting out the conditions of the tenancy, the most common breach is non-payment of rent. This is the one contractual obligation a tenant has that cannot be disputed. Some landlords may be willing to forgive a late payment or two, but this is a matter for personal discretion. Legally, if the rent is not paid on the date it is due, a breach has occurred. In the first instance, the tenant is given the opportunity to rectify the breach. The landlord serves notice to the tenant to this effect, and then if the breach is not rectified, the landlord can terminate the lease contract.

The landlord must give notice of the intention to evict the tenant through the courts. The eviction order will give a date for a court hearing, at which the tenant may offer a defence. If there is a valid defence, a trial date will be set. In the absence of such a defence, the court issues a warrant of eviction to the Sheriff. Note that only a Sheriff is authorised to remove a tenant or a tenant’s possessions from a property.

Month-to-month or open-ended leases

The landlord must give the tenant “reasonable” notice of termination of the lease. A calendar month’s notice will satisfy the 20 business days required by the CPA and is considered reasonable. There does not have to be any breach of an agreement. If the tenant fails to vacate the property at the end of the calendar month, as requested, then the landlord can begin the eviction process described above.

Time’s running out

Soon this advice will be irrelevant. The Rental Housing Amendment Act 35 of 2014 will require  landlords to provide tenants with a written lease agreement. Verbal agreements will no longer be binding. The Rental Housing Amendment Act will apply immediately to new lease agreements and landlords will have six months to bring existing agreements in line with the new legislation. At the time of writing, the Act has not yet been gazetted and a commencement date has not been announced. We will keep readers of this blog informed.

Seek the guidance of an expert eviction lawyer

If you are a tenant without a written lease and would like to discuss your circumstances, or if you are a landlord needing to draw up a formal lease agreement, 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 eviction law, and we uphold the rights of both parties without bias.


Khayelitsha land occupiers to square off with City in court

By | Eviction news, Eviction notice, Eviction orders, Evictions

The group occupying land in Makhaza plan to oppose their eviction in court on 9 September

Photo of rebuilt shacks
Residents from Mpukwini informal settlement in Khayelitsha have begun rebuilding homes demolished by the anti-land invasion unit two weeks ago. The residents plan to oppose their eviction in court next month. Photo: Vincent Lali

Shack dwellers at Mpukwini informal settlement in Khayelitsha are preparing to square off with the municipality in court next month. They want the eviction order against them scrapped and the City of Cape Town to build them houses on the land.

About two weeks ago, the City’s anti-land invasion unit and law enforcement members demolished shacks belonging to residents who occupied the land in Makhaza. Residents at the time protested as their building materials were confiscated by officials.

Since then, many residents have rebuilt their homes on the land. The City has an urgent interim eviction order against anyone illegally occupying the land, but the occupiers are raising money for transport to collect some of their building materials from the City’s depot.

Mayco Member for Human Settlements Malusi Booi said that the City was “considering its options” on how to deal with the occupiers. Booi added that if the occupiers wanted to challenge their eviction, they needed to “show cause, if any” as to why the final order should not be granted on 9 September.

But community leader Bandile Kona said they were there to stay. “We don’t want to go anywhere else. We will stay here until the City of Cape Town builds RDP houses for us here.”

He said they were not concerned with the lack of basic services. “I had no other option but to rebuild because I had no place to stay and keep my belongings,” he said.

Samela Mene moved to Mpukwini from Island informal settlement, after her shack flooded during heavy rains. She said life was better at Mpukwini because it was closer to public transport and a crèche for her child.

Mene shares her small shack with her elderly mother and her children aged seven and three. “I’m waiting for the court to make a ruling on our occupation before I extend my shack so it can accommodate my whole family,” she said.

Another resident, Lelethu Mvumvu, whose shack was among those demolished, now squats in a shack with two relatives and their four children at Mpukwini. “I still struggle to raise the R500 that I must pay to law enforcement to get my building materials back,” she said.

On Saturday, an official who only identified himself as Gautanu from the Anti-Land Invasion Unit visited the settlement to warn resident against building more shacks.

“If you build more shacks, your belongings and building materials will be taken away to the scrap yard,” he told residents in the presence of GroundUp. “Whenever there is a new structure, we will take it away along with the furniture. The judge told you not to build more shacks,” he said.

Reprinted from GroundUp with thanks.

*Simon Dippenaar & Associates, Inc. is a law firm in Cape Town, now operating in Gauteng and Durban, of specialised eviction attorneys, helping both landlords and tenants with the eviction process. Contact one of our eviction lawyers on +27 (0) 86 099 5146 or info@sdlaw.co.za if you have been evicted unlawfully.

Further reading:

Police Accused of Doing Nothing

Unlawful Evictions

Durban Evictions

The Sheriff in Town

Shack Evictions

Eviction Orders: Rescission

By | Eviction law case summaries, Eviction orders

Eviction orders | Case Summary by Simon Dippenaar & Associates Inc., a law firm with eviction lawyers based in Cape Town and Gauteng

Eviction orders will be rescinded where courts fail to take into acccount the personal circumstances of occupiers. Read more here.

The Occupiers, Shulana Court, 11 Hendon Road, Yeoville, Johannesburg v Steele,

Case no.: 102/09 and 499/09, In the Supreme Court of Appeal

The appellants were are a group of people who occupied certain property in Johannesburg. The appellants brought two appeals before the court, namely (1) against an order of eviction that was granted by default and (2) against the dismissal of an application for rescission of the order of eviction.  

The appellants occupied the property in terms of oral agreements of lease and, according to the respondent, their tenancy was on a periodic monthly basis and the monthly rental was R1,239.00 per flat and R266.00 per room. The respondent alleged that the property had become overcrowded and run-down and, as such, he elected to terminate the leases so that he could renovate the property.

The respondent gave the appellant’s notice of the termination of the respective leases and they were given three months, until 31 January 2008, to vacate. None of the appellants vacated and, accordingly, the respondent instituted eviction proceedings against them during April 2008. The appellants failed to oppose the eviction, which resulted in an order for their eviction on 18 June 2008. The appellants subsequently applied for rescission of the eviction order.

In order to be successful in an application for rescission, applicants are required to show good cause. They must give a reasonable explanation for the default and show that they have a reasonable defence to the claim, which, prima facie, has some prospect of success.

The appellants alleged that approximately 70 people resided on the property, of which there were children, disabled persons and woman-headed households. They stated that they had searched for alternative accommodation but could not find anything that they could afford.

The appellants, upon receiving the eviction notice, claimed that they had sought assistance from the Inner City Resources Centre (ICRC), a non-governmental organization which provides assistance to people who are threatened with eviction, and believed that the ICRC would take the necessary steps to oppose the application. The appellants believed that the ICRC would appear in court on their behalf on 17 June 2008.

The court found that the appellants clearly intended to oppose the matter but that they failed to appear in court because they bona fide believed that they would be represented, which they weren’t. Therefore, the court found that they were not in wilful default.

Section 4(6) and 4(7) of PIE provide that a court may only grant an eviction order if it is just and equitable to do so, after considering all the relevant circumstances. The court is obliged to consider the rights and needs of the elderly, children, disabled persons and households headed by women. The court must also have regard to the availability of alternative land.

In Occupiers of Erf 101, 102, 104 and 112 Shorts Retreat, Pietermaritzburg v Daisy Dear Investments (Pty) Ltd & others [2009] 4 All SA 410 (SCA), the court held that “where information relating to these matters is not placed before the court, the court will not be in a position to consider these circumstances in determining whether the eviction was just and equitable.”

The court found that, as the information relating to the needs of the elderly, children, disabled persons and households headed by women was not placed before the court, the court was not in a position to have regard to all of the relevant circumstances. The court also did not have the views of the municipality, which could best inform the court of alternative accommodation available. It was found that the High Court had failed to comply with the mandatory provisions of section 4 of PIE.

The High Court should have taken steps to ensure that it was appraised of all relevant information in order to enable it to make a just and equitable decision. Generally speaking, it will not be just and equitable to grant an eviction order where the effect of such an order would be to render the occupiers homeless.

The court held that having regard to the personal circumstances of the occupiers, and the possibility that their eviction could lead to homelessness, the appellants established a bona fide defence that had some prospects of success.

Accordingly, the default judgment, which was granted against the occupiers on 18 June 2008, was rescinded and the appellants were granted leave to oppose the application for their eviction.

Further reading: