Category

Rental Housing Act

Apr 03
0
How to defend against eviction

Eviction – how to defend against eviction by your landlord

By | Appeal of an eviction order, Eviction notice, Evictions, Rental Housing Act

You are not helpless – you can defend yourself

Your home should be your castle, or at least your sanctuary. It is where you feel safe, even when the world outside your door is battering you. It is where you share happy – and sad – times with your family. What happens when your home is threatened, when your landlord warns you they are about to serve you with an eviction order? How do you defend against eviction? Just as your landlord must follow a defined procedure, there is also a process you can follow to fight the eviction.

Eviction procedure

Firstly, the eviction procedure is a lengthy process that gives you ample opportunity to put things right before the landlord goes to court to secure an eviction order. With a residential property lease, once there is a breach of contract, for example non-payment of rent (the most common reason for eviction), the landlord is entitled to give notice of their intention to cancel the lease and evict you. When you receive this notice you have a period of time in which you can rectify the breach, i.e., pay the rent arrears. If you are in financial difficulties and are unable to pay all the rent owed, we recommend you talk to your landlord and try to negotiate a payment plan. Most landlords are reasonable and good communication is the solution to many problems. However, If the landlord has given this written notice and the notice period has expired and you have made no payment, eviction proceedings can begin. If the lease is cancelled for any other breach, that must also be rectified within the notice period.

Once a notice of cancellation has been sent and the notice period has expired, the court process may begin, through the service of summons by the Sheriff. You then have 10 days to defend the summons by filing and serving a Notice of Intention to Defend. 

Trial

If the matter is opposed it moves to trial. Before a court can grant an eviction it has to consider all the relevant circumstances. It needs to be convinced that the eviction is just and equitable. The court will hear your arguments and those of the landlord, via affidavits. If you are in breach of your lease and you have not rectified the breach, i.e., if the landlord’s intention to evict you is lawful, it is up to you to raise special circumstances to defend your case. The court will take into consideration the rights of any elderly occupants, children, disabled persons and households headed by women when granting the eviction.

It is vital that you attend your court hearing. If you do not appear in court, your eviction will be considered unopposed and you will not be able to defend against eviction, even if you have filed a Notice of Intention to Oppose.

Grounds for defending against eviction

If you believe the eviction is unlawful – your landlord does not have a good reason to evict you – then you must oppose the eviction and give evidence as to why you believe the action is unlawful. For example, provide proof of payment for your rent. Even if your payment was late, if you rectified the breach within the specified time frame your landlord does not have grounds to evict you.

If the eviction is lawful, but eviction would negatively impact your health or wellbeing due to personal circumstances, you can defend against eviction on these grounds. For example, you may have mental health issues or you may be undergoing treatment for illness and the disruption of moving would be deleterious to your health. Or you may have no alternative accommodation and you need government-provided Emergency Alternative Accommodation. You can oppose your eviction for this reason. 

In both of these cases, if you are successful in opposing your eviction, it is likely the outcome will be a stay of the eviction order, to grant you more time to find alternative accommodation (or until your health improves if your opposition is on health grounds). If you are in breach of your tenancy agreement and the eviction is lawful, the judge is unlikely to simply rule against the landlord and in your favour. There is more likely to be some accommodation of your circumstances, as our Constitution guarantees everyone the right to housing.

Legal representation

You have the right to be represented by an attorney, and it’s a good idea to exercise that right, as a skilled lawyer has experience and knowledge of the judicial system you do not have. Eviction is a civil matter, and the state will not provide a lawyer automatically if you cannot afford one. However, you can request a postponement from the judge so you can find legal representation. You may seek assistance from Legal Aid or a university law clinic.

Legal costs

If you defend against eviction and you lose your case, you may be liable for your landlord’s legal costs. In practice, the court is unlikely to order you to pay costs if you are on a low income and have a valid reason for opposing the eviction.

For further information

Simon Dippenaar & Associates, Inc. is a law firm of specialist eviction lawyers in Cape Town, Johannesburg and Durban. Contact one of our eviction attorneys on 086 099 5146 or simon@sdlaw.co.za if you need help with an opposed eviction or any advice on the eviction process.

Further reading:

Feb 22
0
The Right Letter of Demand

Letter of demand

By | Lease Agreement, PIE, Rent, Rental Housing Act, Tenants

How to ensure the correct documentation with defaulting tenants

What happens if tenants stop paying rent? How can a property owner legally demand payment? What does rental housing legislation require? The answers depend on the nature of the lease and the nature of the tenants.

Consumer Protection Act

The Consumer Protection Act 68 of 2008 (CPA) governs fixed-term agreements between persons. A lease agreement falls into this category. A landlord must give the tenant 20 business days’ notice to rectify any breaches with the lease agreement (e.g., late rental). If the tenant pays the amount owed within this time frame, the matter is resolved. If not, the landlord is entitled to terminate the lease agreement and seek new tenants – hopefully ones who will always pay their rent on time.

Rental housing is governed by more than one piece of legislation. The Rental Housing Act 50 of 1999, Rental Housing Amendment Act 35 of 2014, and Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) apply, along with the CPA. In determining the application of the CPA, there are two key factors to consider.

  1. Is the lease agreement for a fixed period? 

This is fairly standard with lease agreements. The most common period is one year, but two years and six months are also found. If the lease is not a fixed-term agreement, it is known as a month-to-month lease agreement. The CPA does not apply to month-to-month leases and the landlord can give the defaulting tenants a seven-day letter of demand for the money.

However, this is not the same as eviction. The Rental Housing Act 1999 requires the landlord to give the tenants one calendar month’s notice to vacate the premises.

If the lease is for a fixed period, the CPA applies and the tenants must be allowed 20 business days to rectify the breach. Only if the breach is not rectified can the eviction process begin.

If the lease was for a fixed period but has since expired, and the tenants have remained in the property by mutual consent, this is considered a month-to-month lease agreement operating on the same terms as the original lease agreement. These terms will continue to apply to the month-to-month lease. CPA will not apply and the seven-day letter of demand can be used. When it comes to giving notice to leave the property, the notice period stated in the original lease applies. If no notice period is specified in the lease, a minimum of one calendar month’s notice is required.

  1. Are the tenants a natural person or a juristic person?

If they are a natural person the CPA applies and 20 business days’ notice is required.

If they are a juristic person then the process to follow depends on their size and value. If the annual turnover or asset value does not exceed R2 million the CPA applies, along with 20 business days’ notice. If turnover or value exceeds R2 million, CPA does not apply and a seven-day letter of demand can be issued.

The following infographic shows the process to follow:

Source: TPN Credit Bureau

For further information

Simon Dippenaar & Associates, Inc. is a Cape Town law firm of specialist eviction lawyers, now operating in Johannesburg and Durban, helping both landlords and tenants with the eviction process. Contact one of our eviction attorneys on 086 099 5146 or simon@sdlaw.co.za if you need advice on letters of demand or the eviction process.

Further reading:

 

Sep 05
0

From Homeowner to Landlord: How to Make it Work

By | Lease Agreement, Rental Housing Act, Tenants

Reprinted from Tech4Law – 2022-07-04

It’s all about the side hustle in 2022. With the economic effects of the Covid-19 pandemic still being felt, many South Africans are hustling to bring in extra cash to help pay the bills.

A smart way to earn a bit more, especially if you already have a primary job, is to generate a passive income, which is a revenue stream that comes from somewhere other than an employer and requires minimal effort to earn. You can do this by becoming a landlord, either by investing in a rental property, or by moving on from your smaller ‘starter’ home and converting it into a rental.

“This is a long-term investment strategy that can provide a steady income, as long as you keep in mind that ‘passive’ does not entirely describe what it is to be a landlord. It does require some work. If you’ve ever said “oh no, the geyser has burst, let me call my landlord”, you know what you’re in for,” advises Andrea Tucker, Director of online bond originator MortgageMe.

Here are some tips from the experts at MortgageMe to help first-time landlords navigate the property rental business.

  • Understand the legalities

Familiarise yourself with The Rental Housing and Amendment Acts and the CPA (Consumer Protection Act). You will need to have a written lease agreement that is understood by all concerned parties. “The lease needs to contain all the information pertaining to the tenancy, such as the tenant’s start and end date, the rental amount, deposit details, the use of the property and conditions around how disputes will be addressed,” says Tucker. You will need to provide your tenant with a copy of the signed agreement, and also issue the tenant with a receipt for every payment received. Also inform your insurer that you’re going to be renting your property to ensure that you’re covered for every possible eventuality in the future.

  • Factor in all the costs

Do some research on what you can charge for rent on the property and then take into account what your expenses will be to calculate your profit. Remember to include costs like bond payments, insurance, levies, maintenance and cleaning into your calculations.

Make sure you are in a relatively secure position financially as unforeseen circumstances can deal a blow to your finances. Tucker’s advice is to have money kept aside in a contingency fund for unanticipated expenses such as payment defaults or issues not covered by home insurance. If you have an access bond on the property, you can use this to cover any larger than anticipated expenses that need to be covered in an emergency.

  • Screen potential tenants

It is vital to do a proper credit and background check on a new tenant. If you’re managing the rental yourself, ask the prospective tenant for a certified copy of their ID, three months of bank statements, proof of income and references from previous landlords. You can also approach an online data aggregator to do these credit and background checks, after you’ve received consent from your prospective tenant.

  • Consider hiring a rental agent or property manager

If you want your passive income to be a bit less active, hire someone to do the hands-on management of your rental. A professional will know all the legalities involved in renting a property, how to screen tenants, deal with disputes and collect payments. This comes at a cost, so its completely up to you about how much time you think you’d need to set aside to manage a property.

  • Create a network of contractors

You may be handy around the home, but repairs on your rental may take up more time than you’re willing to give, and some repairs are likely to fall out of your area of expertise. Tucker advises creating a list of trusted maintenance people, such as electricians, plumbers and painters, who you can call on to assist in times of need. Weekends are for hobbies, not sorting out home maintenance right?

  • Understand your responsibilities

Your first responsibility is to ensure that your property is fit for rental purposes and well maintained. You also need to be available to your tenants whenever issues regarding the rental arise. If you receive an emergency request for a repair, you are obligated to attend to the issue in a reasonable amount of time.

“Keep the lines of communication open to ensure a happy tenant. Let them know about any scheduled maintenance in advance and be on call for any concerns they may have, however small. This will ensure a good relationship between you and your tenant, which will go a long way to ensuring your job as a landlord is trouble-free,” counsels Tucker.

Most importantly, make sure you keep on top of maintenance. Don’t let months go by without popping into the property to ensure that your tenant is keeping it clean – not everyone is as tidy as you. This will make a future transition to a new tenant less onerous on you, and less costly in the long run.

We can help

Simon Dippenaar & Associates, Inc. is a Cape Town law firm of specialist eviction lawyers, now operating in Johannesburg and Durban. If you are considering becoming a landlord, or if you need advice on any aspect of a lease or landlord-tenant relations, contact one of our attorneys on 086 099 5146 or simon@sdlaw.co.za.