Category

Evictions

Jan 25
0

How to evict non-paying tenants

By | Evictions, Rent, Tenants

Evicting a non-paying tenant is a legal matter that should be handled to avoid incurring losses. This is how an eviction can be done.

Reprinted from citizen.co.za, by Kayla Ferguson – 2024-01-23

While it can be a lengthy process to evict tenants who fail to pay their rent, there are procedures in place to make sure that both the tenants’ and the landlords’ rights are protected. Following the necessary steps is key to a hassle-free eviction process.

Legal provisions

Adrian Goslett, Regional Director and CEO of RE/MAX of Southern Africa explains that both the tenant and the landlord must play fair with respect to their rental agreement.

“It is crucial to abide by the contractual agreements and, if not, to then proceed with the required legal procedures stipulated in this regard. It is only when people deviate from this that issues start to occur,” he notes.

Tenants are protected by two pieces of legislation, namely: the Prevention of Illegal Eviction from Unlawful Occupation of Land Act, No. 19 of 1998 (PIE Act), and the Rental Housing Act of 1999 (RHAct) as amended. The first sets out the process for evicting tenants, and the second makes it a criminal offence for a landlord to simply cut the supply of electricity or water, change the locks, confiscate tenants’ belongings, or stop a tenant from having access to the property.

“It is vital to always play by the rules. While you might think you can get a non-paying tenant out quicker if you change the locks or defer to other intimidation tactics, the truth is that this will most likely only provide the tenant with ammunition to use against you in the court proceedings. This will only drag things out further and cause more unnecessary complications and delays,” says Goslett.

Although it might be forgivable for the odd late payment if it’s a bank or financial system-related problem, a landlord cannot be so lenient if their tenant gets into the habit of paying their rent late.

How to go about the eviction

“Because the monthly payment date forms part of the rental agreement – which must also comply with the Consumer Protection Act – when a tenant doesn’t pay on time, they are technically in breach of contract. Legally, this means that a landlord should send the tenant a formal letter explaining that they have 20 business days to make the payment, and if they don’t pay their rent in that time, their lease will be cancelled,” Goslett explains.

If the tenant fails to pay what is due within the stipulated timeframe, the landlord can legally terminate the lease and ask them to leave. If the tenant refuses, the landlord can then take out a court order to evict the tenant for breach of contract.

“This process can take up to six months, during which your tenant can stay in your property and will probably still not pay rent. Once the eviction is granted, the tenant is usually given at least another 14 days to find new accommodation before the eviction order is executed,” says Goslett.

Because the eviction process can be so lengthy, Goslett suggests taking steps as soon as possible to prevent too great a loss of income. “The longer you take to act on a late or missed payment, the longer it will be before you can legally evict a tenant who continues to miss payments.”

To guard against this, landlords are encouraged to work with a professional RE/MAX rental agent who can thoroughly screen potential tenants and minimise the risk of late or missed payments.

“It can be tempting to go it alone in the mistaken belief that handling the property rental yourself will save you money. Also, when we’ve found the perfect tenant, it’s impossible to think that something might go wrong – until it does. It is better to get expert help from the very beginning than to try and navigate these challenges on your own,” Goslett concludes.

For more information on evicting a non-paying tenant

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 evicting a non-paying tenant.

Further reading:

Oct 17
0

Court showdown over Cape Flats evictions

By | Eviction news, Evictions, Homeless

“We are not here because we want to be here. We are here because we need homes.”

Reprinted from GroundUp, by Mary-Anne Gontsana – 2023-10-16

  • People living in about 110 informal structures and Wendy houses at Cathkin Village informal settlement in Heideveld are facing eviction.
  • They first moved onto the land earmarked for the Western Cape Education Department (WCED) in May 2018 due to the lack of affordable housing options in the community.
  • Their fate will be determined on 24 October when their eviction case is heard in court.

Hundreds of people living on land earmarked for the Western Cape Education Department (WCED) are heading to court later this month to fight their eviction.

There are about 110 informal structures and Wendy houses at the Cathkin Village informal settlement in Heideveld. It is home to hundreds of backyarders who occupied the vacant land in May 2018 due to the lack of affordable housing options in the community.

Residents like Faranaaz Fisher fear being evicted from the area where most of them have lived their whole lives. Fisher said she has been on the housing waiting list for more than 20 years and could no longer live in her mother’s cramped council flat with ten other relatives.

She said that life at the settlement hasn’t been easy because they don’t have basic services and gang violence in the surrounding area is rife.

“We lock this (entrance) gate at 7pm for safety purposes. Everyone here, especially the children, know that they need to be inside by then. We don’t allow nonsense. We try our best to keep this a safe environment from things like drugs and crime. We even have a neighbourhood watch,” she said.

Fisher said that because there was no electricity in the settlement, most residents used car batteries to power small appliances, rechargeable lights, and gas stoves for cooking. “It gets completely dark here at night because we don’t even have a mast light.”

Another resident, Farinaas Lakay, said they only have access to three taps and porta-potties. “The City of Cape Town failed us and has probably forgotten about us,” she said. “We are not here because we want to be here. We are here because we need homes.”

Cathkin Village is fenced off and has two entrance/exit gates. One of the entrances is situated on the side of a block of flats, which according to Lakay, has many shooting incidents.

According to Lakay, most of the residents in the settlement have been on the housing waiting list for decades.

On the eviction order, Lakay said: “We are fighting for houses. We want houses to be built on this land. Our children go to school here, our husbands have jobs here and everything is close by like public transport and clinics. More importantly, most of us are from Heideveld.”

WCED spokesperson Kerry Mauchline told GroundUp that the land was allocated to the department but it is under the custodianship of the Department of Infrastructure.

“The land is illegally invaded. Court action has been initiated to remove the illegal occupants so that the land can be used for education. An eviction order was issued against the illegal occupants. In terms of the eviction order, the City of Cape Town must find alternative accommodation for the occupants,” said Mauchline.

Mayco member for Water and Sanitation Zahid Badroodien said: “The City’s Water and Sanitation Directorate’s Informal Settlement provided three standpipes on a City-owned piece of land on the periphery of the informal settlement, and 109 portable flush toilets. Currently there are no further plans as the land where the informal settlement stands does not belong to the City.”

Junaid Jumat, the lawyer representing the Cathkin occupants, said: “An eviction order had been granted against the residents just before Covid lockdown, and there were dates for when the eviction should’ve taken place, but those dates have since lapsed.” The case has been enrolled again, said Jumat.

Jumat said they want the court to amend the order and change the eviction date.

The matter is expected to be heard in court on 24 October.

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:

Oct 04
0
RDP house

‘I want to take my last breath in this house’ says Cape farm dweller facing eviction

By | ESTA, Evictions, Farm evictions

Reprinted from capetownetc.com, by Liezl Human of GroundUp – 2023-10-03

Two families on a farm in Vredendal on the West Coast are being evicted from the homes they have occupied for several generations.

Several other tenants also living on Welverdiend Farm have been told to relocate to RDP houses in Vredendal North.

The residents, most of whom have lived on the farm all their life, do not want to move to a township which they say is dangerous and has frequent incidents of crime. They also don’t want to leave the farm because the graves of their parents, siblings, children and other relatives are on the property.

The current owner, Truter Lutz, purchased the farm for commercial agriculture in 2015. He wants the tenants to leave the houses so that his current employees can move in as the farm is about ten kilometres from the nearest urban area. None of the people currently living on the farm are employed by Lutz.

Welverdiend mostly farms fruit, vegetables and nuts for both the local and international market.

In an attempt to secure the families’ tenure, the Department of Agriculture, Land Reform and Rural Development had offered to buy the portion of the farm where they live. However, this offer was not accepted by the new owner. The matter is expected to be heard in the Land Claims court. No court date has been set yet.

According to court papers dated 30 May 2023, seen by GroundUp, the land was ‘free of any encumberments or land claims of any kind’ at the time of purchase.

Meanwhile, Andreas Finana whose family has lived on the farm for many generations says he remembers life there while he was growing up. Finana, now 50, points to a tree nearby where he had carved out his name as a young child.

According to Lutz’s affidavit, Finana was employed at Welverdiend from August 2020 until January 2022, when he was dismissed.

Finana lives with his sister and one of his children. ‘This farm has passed through three hands since my birth,’ he says. ‘I want to take my last breath in this house and be buried up here.’

Finana says they are worried what life would be like if they have to leave the peace that comes with living on a farm. ‘Here I can leave all my doors and windows open. I can leave my laundry outside. I can walk over to that house anytime of the day or night … I feel safe here.’

Elderly couple Anna and Dawid Saal were among the several tenants who received a letter that they needed to relocate to an RDP house. All four of their children were born on the farm. Anna was born on the farm in 1953 and her parents had worked on the farm. Dawid moved to the farm when they got married in the 1970s. Their son was also buried near their home.

Dawid says they struggled to understand what the ‘big words’ in the letter actually meant. Dawid said their son was buried in the graveyard on the farm and he also wants to be buried there.

Thys Beukes, who was a seasonal worker for one of previous farm owners, says he worries about his elderly mother’s health and quality of life should they be successfully evicted. ‘She is too old to move to the place they want us to relocate to. There are murders, rapes, and thievery,’ he says.

Coleen Arnolds, development facilitator at the Surplus People Project — a local organisation helping the farm dwellers — told GroundUp that there was ‘lots of violence’ in Vredendal North and that it would be a major change for this group to be forced to move there.

She said the RDP houses in Vredendal were cramped and didn’t have much space for the farm dwellers’ to sustain themselves by ‘planting vegetables’ like they do on the farm.

We sent several questions to the Department of Agriculture, Land Reform and Rural Development. Officials told GroundUp that they could not comment before the matter is adjudicated in court.

When we contacted the farm owner, Mr Lutz, his legal representative, Steph Grobler responded to GroundUp, which we have published below in full:

“Our client does not intend to answer each and every one of your queries and the same should not be construed as an admission or denial of the same. Our client also reserves the right to respond at a later point in time should our client deem the same to be necessary.

Our client is a commercial farmer and the land in question is zoned for agriculture purposes. The farm was purchased free of any land claims and/or other encumberments. Our client confirms that there are two (2) pending Extension of Security of Tenure Act (ESTA) eviction matters. The respondents are represented by Legal Aid South Africa and have this week filed a notice of appearance confirming the intention to oppose the matters. Our client will continue to follow the lawful process and will continue to engage with all the interested parties in an attempt to find an amicable solution.

It is specifically confirmed that there are no aged persons amongst the respondents or occupiers who enjoy protected status under section 8(4) of the Act. There are certain occupiers who enjoy protected status who have received RDP houses in the local housing project. In terms of the applicable municipal legislation and rules pertaining to subsidies, the recipients/beneficiaries are required to accept the allocation and are to reside in the house in question themselves. It is common cause that a real right in property, which so few of our citizens have the privilege to enjoy, is a stronger right than any personal right that is acquired through the operation of the ESTA Act.

Our client is of the view that the aforementioned persons should relocate peacefully to their allocated houses and take occupation thereof. Our client has attempted to meet with the occupiers to determine how they can be of assistance to relocate them peacefully to their RDP houses. These attempts have to date hereof been futile and met with hostility.

In these instances, the state has fulfilled its section 26 duty, and the beneficiary should accept the allocation and take occupation forthwith. To expect a private landowner to continue to house occupiers when they have alternative accommodation available is prejudicial to the landowner and to the commercial viability of the farm. The intention of ESTA, as it is clear from the preamble, is to provide security of tenure to vulnerable farm workers who do not enjoy access to alternative accommodation. It could never have been the intention of the legislature that persons who have received state grants (again a reference to the law in this regard) should be able to remain on the farm and enjoy possession and occupation of both premises. ESTA speaks to the permanence of residence, as does the applicable rules pertaining to individual housing subsidies/RDP houses.

Our client will continue to follow a lawful process in this regard and will engage with the interested parties including the local municipality in an attempt to find an amicable solution. In the event the parties are unable to find an amicable solution, our client will follow the applicable legal process.”

Facing eviction?

This case is before the courts. It is not for us to comment on whether or not these evictions are lawful. However, if you think you are being subjected to illegal eviction practices, or if you are evicting a tenant lawfully and the eviction is being opposed, our specialist eviction lawyers can help. Simon Dippenaar & Associates, Inc. helps landlords and tenants maintain healthy working relationships but, when necessary, we can assist with eviction, ensuring it is effected legally and ethically and all parties’ rights are respected. Contact one of our eviction attorneys on 086 099 5146 or simon@sdlaw.co.za for assistance with eviction matters.