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Evictions

Don’t cross the line into an illegal eviction

By | Evictions

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Trying to evict a tenant can be a highly frustrating problem, especially if you’re losing money on rentals or need to fix damage to your property that was caused by the tenant. However, it’s essential that you follow the letter of the law so that you don’t end up in trouble.

The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act No 19 of 1998 (PIE) has very careful regulations laid out that dictate what the eviction process must be. It doesn’t matter if your tenants are defaulting on their rent or damaging your property, you have to follow this process in order to stay on the right side of the law.

 

 

What constitutes an illegal eviction?

  • Turning off the water and electricity – It can be very tempting to make life as miserable and as uncomfortable as possible for your tenants in order to force them out. This is deemed an unlawful act because it goes against a person’s constitutional right to decent housing and the landlord’s responsibility under the Rental Housing Act, 1999, to provide liveable accommodation.
  • Changing the locks – It goes against the regulations set out in PIE to stop the tenant from being able to get into their home before they have found a suitable alternative. You must refrain from taking this kind of action, even if a court order for eviction has been granted.
  • Scare tactics – Trying to intimidate the tenants and scare them into moving out is an unlawful act. Not only could you face charges under PIE, but you could also be accused of attempted assault and battery. This could lead to a criminal record for you that won’t go away.
  • Removing your tenant’s furniture and belongings – Even if an eviction order has come from the courts, you cannot move the tenant out for them. The only person who can do this is the Sheriff of the Court, and then only if the tenant doesn’t leave by the date and time stated in the court ruling.

What are the penalties for an illegal eviction?

The courts take this very seriously in South Africa. You could end up paying a heavy fine, as well as paying damages to your tenant. The worst case scenario is that you could end up in jail, facing serious criminal charges.

If you’re stuck in a property dispute that you can’t see a way out of, don’t cross that line into an illegal eviction. Give Simon a call to find out exactly how to toe the line legally and get your troublesome tenant out for good.

Don’t DIY yourself to an eviction

By | Evictions

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A quick trip to the Builders Warehouse over the weekend confirms that South Africans are indeed getting stuck into DIY projects. Renovations, touch-ups and home improvements are very common this time of year as tenants sign and renew lease agreements. But before rushing off with paint rollers and tile cement, let’s look at the contractual challenges tenants and landlords face when it comes to the maintenance and improvement of a property.

 

When does decoration become damages, and upkeep become unkept?

When it comes to the upgrading and upkeep of a property it’s recommended that the tenant and landlord agree on the direct and indirect operating costs of the property and what they consider upkeep and maintenance to be upfront. Both parties should also agree and be clear on which costs each party is responsible for.

Most lease agreements state that the landlord maintains the outside of the property, which may include garden or pool services. And the tenant is responsible for maintaining the inside of the property.

 

Tips for tenants and landlords to avoid disputes:

  • When moving into the property, the tenant and landlord should inspect the property together, and list in writing the existing defects. Both parties should sign this list.
  • When moving out of the property, conduct an inspection together again. Draw up a list of defects and compare this to the initial list.
  • The tenant has the right to repair all the damages before the landlord claims for it. In most lease agreements the tenant is instructed to return the property to the condition it was received in. For example, patching and painting walls where art or pictures might have hung.
  • If the tenant chooses not to repair the damages, the landlord may do so by subtracting these costs from the deposit paid.
  • All receipts paid for repairs should be kept as proof.
  • In rare cases where it is proven that the tenant has made improvements to the property, effectively raising the value of the property, the landlord may be liable for paying the tenant for these improvements. An attorney should be consulted in this case.

 

Additional facts:

  • It is the landlord’s responsibility to ensure the tenants initials the relevant clauses where upgrade, upkeep and maintenance responsibilities are discussed.
  • The landlord is responsible for ensuring the property is “habitable” before the tenant moves in. He or she is not, for example, expected to have carpets and curtains dry-cleaned or to have all stains removed from the floor and wall.
  • Landlords should insist that all municipal accounts are posted to them rather than the tenants, even though the tenant may be responsible for paying these.

 

When it comes to lease agreements there is no one-size-fits-all solution. They come in different shapes and sizes and it’s always a good idea to have an attorney double-check yours before signing.

 

If you would like us to attend a pre or post inspection of a property with your landlord or tenant to ensure that all agreements are understood and signed, contact SD Law & Associates today.

 

Tagged in: evictions, tenants, landlords, DIY

5 key terms for understanding the Prevention of Illegal Eviction Act

By | Evictions

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The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 1998, is often thought of as being biased towards to tenants or occupiers. However, the full Act has been carefully crafted using South Africa’s constitution in order to protect both sides of the coin.
 
PIE was created specifically to ensure that the rights of all South Africans are taken into account when it comes to land and living arrangements. Our country’s 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.”
 
Getting to grips with how PIE works for you
 
Here are several key terms used in the Prevention of Illegal Eviction Act:

  1. Eviction procedure – There is a set list of procedures prescribed for three different groups in South Africa, namely private owners, organs of state and urgent applications. The basic steps that all three groups must follow are: giving notice to the tenant that you plan to apply to the court, an application must then be sent to the court who will, in turn, notify the tenant or occupier of the hearing date. Only after this hearing will a judge decide if an eviction is “just and equitable” according to our constitution.
  2. Written notice – There are two sets of written notice that must be given for a lawful eviction to be considered. Firstly, the landlord must send notice to the tenant that they intend to take legal action. Secondly, the court will then provide notice of the hearing date to the tenant. This second notice must happen at least 14 days before the court date.
  3. Urgent application – The courts will only accept an urgent application in cases where it is obvious that either the tenant or the landlord are in immediate danger. Another possibility for an urgent application is if the owner will suffer – physically or financially – more if the occupier stays than the occupier would if they get evicted.
  4. Unlawful occupier – This is anyone who occupies a piece of land that doesn’t belong to them, and without the express or tacit permission of the owner. It’s important to note that tacit permission is when the owner or person in charge of the land is aware of the unlawful occupier but doesn’t stop them from living there immediately.
  5. Sheriff of the court – If the court has decided that an eviction is called for, the only person who can implement this is the sheriff of the court. Once this officer has served the notice of eviction, it is also their responsibility to ensure that the tenants or occupiers leave by the correct date.

 
Speak to Simon about your rights within the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 1998.