Category

Evictions

Aug 14
0

Pitfalls of eviction

By | Evictions, PIE, Tenants

How to avoid the traps that will scupper an eviction

Have you reached the end of the line with problem tenants? You’ve tried negotiating, pleading, and maybe even formal mediation, but you can’t resolve your differences and your tenants are in breach of their lease. Eviction is a last resort. It’s not a pleasant process and you may even like your recalcitrant tenants and want to avoid conflict. Eviction is time-consuming and costly, both in the short and long term. Eviction itself carries costs but, worse, your property might remain unoccupied for a while before you find suitable new tenants, depriving you of income. Unfortunately, sometimes eviction is necessary. If you do have to evict your tenants, how can you avoid the pitfalls and make sure you meet the correct conditions for eviction?

Legislation

Evictions in South Africa are governed by the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE). The Rental Housing Act and the Consumer Protection Act (CPA) set out further conditions that must be met before an eviction can proceed. Property owners often make mistakes that prolong the eviction process. Avoid them for a hassle-free eviction. We go through the most common blunders below.

Failure to provide proper notice 

The conditions required for a lawful eviction to proceed are set out in the legislation cited above. Importantly, you must give your tenant sufficient notice in the correct manner. To evict a tenant you must give them notice of the breach and time to rectify the breach. If the breach is not rectified within the specified time frame, you can then terminate the lease. If the tenant does not agree to vacate the premises, you may apply to the court for an eviction order. Failure to follow the correct procedures can result in the eviction being declared unlawful and dismissed. 

Inadequate documentation 

A well-drafted lease agreement is essential and records should be kept of all communications with the tenant, especially regarding rental arrears and notices. The legal burden is on you to prove in court that the eviction is both just and right. Therefore, make sure you have sufficient evidence to back up the claim.

No valid reason for eviction 

You must have a valid and legal reason for evicting someone. Common reasons include non-payment of rent, breach of the lease agreement or the need to use the property for personal use. The eviction must be based on legitimate grounds. 

DIY evictions 

Landlords sometimes attempt to evict a tenant alone, without going through the courts. It is illegal to take the law into your own hands and forcibly evict tenants or cut off essential services such as water and electricity without a court order. Removing a tenant using threats, intimidation, harassment, or physical altercation opens the door for tenants to pursue criminal action against you. 

Incomplete maintenance and repairs 

Failure to address maintenance issues promptly can be used by tenants as a defence during eviction proceedings. You have a responsibility to maintain a safe and habitable property and you cannot purposefully make the property uninhabitable in any way. You should complete essential repairs or maintenance promptly. 

Failure to take legal advice 

One of the most common eviction mistakes is failing to take professional advice. Consulting a legal professional experienced in evictions and property law is crucial to making sure you follow the correct eviction process. Evictions are stressful and complicated; an understanding of the applicable laws is vital. The process can drag on and you may be tempted to take shortcuts, usually out of frustration. However, the consequences of not following the proper steps can be significant and result in further delays, costs, and possible legal action. 

Consult an eviction specialist

Simon Dippenaar & Associates, Inc. is a law firm of specialist eviction lawyers in Cape Town, Johannesburg and Durban. We help landlords and tenants maintain healthy working relationships but, when necessary, we assist with eviction, ensuring it is carried out legally and ethically. Contact one of our eviction attorneys on 086 099 5146 or simon@sdlaw.co.za if you need help with an eviction.

Further reading:

May 13
0

City pushes on with plans for eviction of Salt River Market traders

By | Eviction news, Evictions

Reprinted from iol.co.za, by Zolani Sinxo – 2024-05-12

Cape Town – The City of Cape Town is continuing with its plans to evict historic Salt River Market traders who, for decades, have used the venue to not only sell their goods but also to share cultural experiences with customers and residents.

The City recently filed an urgent court application to evict the last remaining tenants who refuse to leave the market.

The once popular market, which was filled with colour, now tells the tale of its decline, with only about four stalls left.

The dispute comes after the City told the traders that the site was earmarked for social housing.

Igshaan Higgins, an activist lawyer who has been vocal on the matter, said the eviction process could have been avoided if the City followed through on its commitment to explore relocating the traders to a suitable trading location.

“Unfortunately, the City opted for an urgent High Court application against financially disadvantaged traders who are unable to adequately defend themselves.

“These traders now face the burden of covering the City’s legal costs, regardless of their decision to contest the matter.

“Many of these individuals have operated businesses at the Salt River Market for over half a century, with their staff now facing unemployment,” said Higgins.

“It is my hope that the City will keep its expensive and overzealous lawyers at bay while trying to find an amicable solution through negotiation and/or mediation.”

Human settlements Mayco member Carl Pophaim said the City was releasing inner city land for affordable housing on an accelerated basis, and Salt River Market was one of various municipal-owned properties in central Cape Town — with a yield of over 3 500 units — that had already been released to social housing developers, including Pine Road, Dillon Lane, and Pickwick in Woodstock, and the Maitland Mews development.

“In line with our agenda to build a City of Hope by enabling much more social housing in well-located areas, the Salt River Market development will include 300 social housing units,” Popham said.

“It will also include a public square, alongside a community hall, anchor retail shops, and convenience retail (such as a hairdresser, laundry, etc) that will create many opportunities for small businesses. The development proposal pays special attention to the historical context of this site,” said Pophaim.

He said development was planned to accommodate the remaining four historical fresh produce sellers.

“The City has held extensive engagements with all the traders on the site, resulting in most of the remaining commercial traders agreeing to relocate on a voluntary basis,” said Popham.

“The land was released by the City council to the successful developer in July 2022, with construction set to start soon in July 2024.

“This is, however, being delayed by only four remaining traders who have, since 2019, been earning an income by trading illegally on the site without a lease agreement at Salt River Market and who do not trade in fresh produce or associated goods.

“Despite ample notice of the City’s intention to release the site for social housing development, these four traders have continued to make commercial gains without even paying for the water and electricity they consume on site.”

For further information

Simon Dippenaar & Associates, Inc. is a law firm of specialist eviction lawyers in Cape Town, Johannesburg and Durban. We help landlords and tenants maintain healthy working relationships. Contact one of our eviction attorneys on 086 099 5146 or simon@sdlaw.co.za if you need help with tenants’ rights or landlords’ responsibilities.

Further reading:

Mar 04
0

Echoes of District Six evictions in case before the Constitutional Court

By | Eviction news, Evictions, Homeless

Reprinted from GroundUp, by Masego Mafata – 2024-02-28

Judges question City of Cape Town about eviction of Bromwell Street tenants

  • The City of Cape Town appeared before the Constitutional Court on Tuesday in a case concerning the eviction of tenants from Bromwell Street, Woodstock.
  • Justice Mbuyiseli Madlanga asked the City whether the planned eviction resembled the forced removals from District Six during apartheid.
  • Ndifuna Ukwazi, on behalf of the Bromwell Street tenants, has argued that the City’s exclusion of emergency accommodation in its housing plans for the inner-city is unconstitutional.
  • The City said it was not obliged to provide emergency accommodation in the inner-city.
  • Judgment was reserved.

Judgment in the eviction of City of Cape Town tenants from Bromwell Street in Woodstock was reserved in the Constitutional Court on Tuesday.

During the hearing, Justice Mbuyiseli Madlanga asked the City if the eviction echoed the displacement of families from District Six under apartheid. “Is this not a refined, modern-day District Six type of displacement?” asked Justice Madlanga.

Housing advocacy group Ndifuna Ukwazi (NU), on behalf of the Bromwell Street residents facing eviction, had approached the Constitutional Court to appeal against a 2023 judgment of the Supreme Court of Appeal which overturned an order by the Western Cape High Court. The High Court had ruled in 2021 that the City’s emergency housing policy is unconstitutional and ordered the City to provide emergency housing in the inner city for the Bromwell Street families.

The Bromwell Street cottages were bought by Woodstock Hub Pty Ltd, a property development company, for R3.15-million in 2013.

The residents began their protracted legal battle against their eviction in 2016. They are long-term tenants of the cottages who work and attend schools in surrounding areas and the inner city. Among their requests has been that the City provide emergency accommodation in the inner city so that they can stay close to their places of work and schooling.

Arguing for the residents, advocate Sheldon Magardie said the City prioritised social housing over accommodation in the inner city, and this ultimately excluded people rendered homeless following an eviction. This, Magardie argued, was unreasonable, irrational and unconstitutional. Many of the Bromwell Street residents would not qualify for the City’s social housing programmes “because they don’t earn enough money to qualify”, said Magardie.

The City’s social housing programme, for which houses in Woodstock are still to be built, is “a rental or co-operative housing option for households earning between R1,850 and R22,000 a month,” according to this Western Cape Government website.

“The inevitable outcome for any person in need of emergency housing in the inner city is relocation to the Incremental Development Areas or Temporary Relocation Areas on the outskirts of the city,” Magardie told the court.

In a lengthy exchange between Justice Leona Theron and Magardie, Justice Theron questioned the lack of clarity from NU regarding which specific housing policy and which specific sections in that policy were unconstitutional.

Magardie responded by saying that the City did not have a singular housing policy but relied on various pieces of legislation and policies.

On behalf of the City, advocate Karrisha Pillay SC argued that no legislation or policy made it an obligation for the City to provide emergency accommodation in the inner city for people who have been evicted in the inner city. “The City does not have emergency accommodation in the inner city,” she said.

Pillay said the City had made offers of temporary emergency housing in Wolwerivier, Maitland and Kampies, all of which had been rejected by the Bromwell residents.

Is this a special case?

Acting Justice Matthew Chaskalson asked advocate Magardie whether the Bromwell Street case should be treated as a special case or an ordinary eviction case.

“We are dealing with lawful tenants who were only evicted because of the consequences of the City’s housing policy. We are not talking about illegal occupiers … This particular community is one of a handful of communities that managed to survive apartheid intact, in a white area … What this process is doing is aggravating spatial apartheid by pushing poor coloured people to the outskirts of the city,” said Justice Chaskalson. He said this made him wonder whether the case should be treated as a special case.

Magardie argued that this was indeed a special case. He said the historical context of Bromwell Street and the question of spatial justice made the City’s action against the Bromwell families unreasonable.

Abahlali baseMjondolo, represented by the Socio-Economic Rights Institute of South Africa, supported NU as amicus curiae, and also argued for a special case as it could develop the law to give sufficient guidance on the location of emergency accommodation.

Advocate Jason Brickhill, on behalf of Abahlali, told the court that currently the law does not give clear guidance on the location of emergency accommodation or on access to services in the accommodation.

But Pillay argued that the applicants had at no point pleaded the case as a special case. She added that if the case had been pleaded as such, the City “may have well said we’ll drop two social housing programmes for emergency housing programmes” in the inner city. But, she said, as it stands, the City does not have the funds or the land available to create emergency accommodation in the inner city because ten of the 11 land parcels that the City owns are designated for social housing.

Judgment was reserved.

For further information

Simon Dippenaar & Associates, Inc. is a law firm of specialist eviction lawyers in Cape Town, Johannesburg and Durban. We help landlords and tenants maintain healthy working relationships. Contact one of our eviction attorneys on 086 099 5146 or simon@sdlaw.co.za if you need help with tenants’ rights or landlords’ responsibilities.

Further reading: