Chantelle Gladwin-Wood, an attorney who practises property law at Schindlers Attorneys, said the rights of a person or entity to remain in occupation of a property varied according to several factors.
Gladwin-Wood said a landlord had the right to “retake possession” of the property if the tenant’s lease was cancelled, had lapsed or if there was another type of occupational right flowing from, for example, a servitude (which is a registered right that a person has over the immovable property of another) that has been cancelled or has lapsed.
With regard to the tenants’ rights, Gladwin-Wood said a “squatter” may refer to a person who is occupying a property in terms of a lease or other right of occupation that has now expired or been cancelled.
She said a “squatter” can also refer to a person who never had any right of occupation whatsoever.
Gladwin-Wood noted that the more appropriate term is “unlawful occupation” rather than a squatter.
She said unlawful occupiers have the right not to be evicted from their home without a court order.
“This does not give them a right to remain in occupation of the landlord’s property,” she said.
Whether you have managed rental properties for years or are a new landlord, sooner or later you are going to face the scenario every property owner dreads: the tenant from hell. Horror stories abound about dead animals, fixtures yanked from their fitments, and even (look away now) excreta smeared on walls – a last protest action before eviction. Fortunately these stories make the news due to their sensational nature but are not typical. Far more common is simple failure to pay rent or damage caused to property. The associated loss of income from this misconduct and an unlettable property while repairs are done can cause property owners to lose sleep.
If your dream tenant has turned into your worst nightmare, what actions are available to you and how do you ensure you remain compliant with rental housing legislation while protecting your asset and your interests?
Tactics of the nightmare tenant
While non-payment of rent is not the only behaviour that makes a tenant difficult or undesirable, it is usually the first indication that there is a problem, and often accompanies other unsavoury conduct. There are several tactics a tenant might use to avoid paying rent. It’s important not to fall for them.
Paying partial rent: A tenant may pay a portion of the rent owed. While they may promise to pay the balance the following month along with that month’s full rent, this is a warning sign and you are unwise to accept it. If you accept partial rent one month, you cannot begin the eviction procedure. The tenant has thus bought time, and in all likelihood will not pay in full the next month. You could reach the end of the lease with a large number of overdue rent payments, but you have forfeited your grounds for eviction. Don’t, whatever the sob story, accept partial payments.
Paying in cash: This is a tricky one because there is still a portion of South African society that is unbanked. The problem with cash is that it is untraceable and therefore if you take your tenant to court they may claim to have made rental payments they did not make, and you cannot prove otherwise. It is easy to produce a fake receipt. You need to be able to show a record of payments made and clear evidence of the months when rent was not paid. If the tenant does not have a bank account, there are electronic alternatives such as Paypal or other e-wallet services. If cash is the only option, give them a receipt that you both sign at the time and keep a copy for yourself.
The hardship story: Some tenants will ask for more time to pay rent, accompanied by a tale of woe designed to gain your sympathy. While their situation may be genuine, it is very hard to verify. However much compassion you have for their misfortune, you are not a bank or a charity. If they need a loan, they must approach family, friends, or financial institutions. If the tenant is a friend, this may feel like tough love, but it will make things easier for both of you in the long run.
The maintenance ruse: A tenant may claim that a property is uninhabitable or in need of maintenance, and withhold rent until the “fault” is addressed. Make sure your lease specifies how maintenance requests are to be made (in writing is best), and then acknowledge every maintenance request, track progress in a system, and provide the tenant with updates. If you respond in a timely manner to written requests for maintenance, the tenant has no grounds for withholding rent.
Prevention is better than cure
Legislation provides landlords with the means to remove nightmare tenants. We cover that in a separate post. But it is better to avoid them in the first place. Tenant screening is a critical aspect of property management and taking shortcuts at this stage may cost you dearly later. Credit checks will tell you about past solvency but they don’t reveal anything about the character of the applicant. Reference checks can be faked, so it’s important to screen the tenant personally and carefully.
Here are some tips to ensure your tenant verification is legitimate:
Always ask to see their original ID. Photocopies can be forged.
Verify their employment history. When contacting an employer, call the main office line listed on a website (not a cell phone). If this is not available – some tradespeople work from cell phone numbers as they are moving around all day but are still bona fide employers – ask them to send you an email from their company email as proof of legitimacy.
Call past landlords. Ask questions such as “can you confirm how much rent the tenant is paying?” This will help determine whether they are a genuine landlord or a friend. If possible, contact the landlord two or three tenancies past. The existing landlords may be keen to get rid of the tenant, and therefore give a good reference! Previous landlords may be more honest since they have no interest in the situation.
Reference check all adults who will be living in the property, not just the person signing the lease. At the risk of being politically incorrect, it does happen that a woman signs the lease because she is a low-risk tenant but her partner has a history of undesirable behaviour. Be sure to ask the main tenant how many people in total will occupy the property and what their names are. You don’t want your two-bedroom flat turned into a commune.
Keep a record of your property conditions and tenant interactions. Conduct regular inspections. We mentioned that non-payment of rent is not the only feature of nightmare tenants. Failure to maintain the property in a reasonable condition is also the source of much landlord misery. Frequent inspections will keep the tenants on their toes; it is much easier to keep a place in good order than to undertake a massive clean-up every three months. It will also allow you to spot potential breaches of the lease, e.g. evidence of animals when the lease explicitly forbids pets. If you fail to visit the property regularly you may actually encourage property damage because your tenants aren’t being held accountable.
You don’t have to go it alone
If you want to avoid renting to tenants from hell in future, we can help you screen prospective tenants and draw up a lease contract. Eviction lawyers are now in Johannesburg, Pretoria and Durban, as well as Cape Town. So wherever your property is located, we can help you find your dream tenant and avoid a nightmare.
Land occupiers in Mayfield intend to bring contempt of court action
About 50 people who occupied vacant land in Mayfield, East of Johannesburg, were left homeless for the third time in two months after being evicted by metro police last week.
All three evictions were done without court orders and despite ongoing litigation between the occupiers and non-profit organisation Mina Nawe Housing Developers, which owns the land.
The first eviction was conducted by SAPS and the Ekurhuleni Municipality Police Department (EMPD) on 6 May, about a week after the land occupation started. The second eviction came three weeks later (28 June). The most recent was on 2 July.
On 25 June, Judge Fiona Dippenaar in the South Gauteng High Court ruled the first eviction unlawful as there was no valid court order. But this did not stop EMPD, SAPS and Mina Nawe from continuing evictions.
One of the occupiers, Khanyisile Mashele, said, “This has been very stressful on us … The court has not assisted us in any way because it has not stopped the EMPD from evicting us … It was just a waste of time and money.”
Mashele said some of the evictees were now living in a church hall nearby as they had nowhere else to go and most of them were struggling to get enough money to buy shack materials to rebuild.
PIE requires a court to consider whether the occupiers include vulnerable people and whether they will be left homeless, in which case the state must provide alternative accommodation.
Nkuna said court papers were never served on the occupiers so they were unaware of the action against them.
Judge Dippenaar said Mina Nawe had approached the court to get an interdict against the occupiers. She had granted an interim order to have the occupiers evicted because Mina Nawe appeared unopposed, but she had instructed Mina Nawe not to use that court order until it had filed supplementary papers.
Mina Nawe filed the papers on 9 May, but the eviction happened three days prior.
“How on earth did that happen?” Judge Dippenaar asked Advocate Msingathi Mlisana, representing Mina Nawe.
Mlisana denied that Mina Nawe had used her draft order to evict the occupiers. “[Mina Nawe] did not give out any instruction to carry out an eviction … It had no role in what the police did and it is up to [the police] to say why they [evicted].”
Judge Dippenaar said she was not convinced that Mina Nawe followed procedure. She ordered the eviction unlawful because there was no finalised court order at the time it was executed, and she set aside the order she had made on 10 May.
Sibusiso Nkomo, one of the directors of Mina Nawe, told GroundUp that the company now intended to evict the occupiers using the PIE act.
After the order was set aside, the occupiers moved back onto the land on 25 June. Three days later, EMPD and SAPS returned to evict the occupiers again without a court order.
The occupiers went back to court after filing an urgent application to stop the evictions.
Judge Ramarumo Monama, presiding, said Nkuna should have brought the matter as one of contempt of court rather than an urgent application, because “the order that you want me to make is already there” (Judge Dippenaar’s ruling on 25 June).
He said the occupiers had a right to be on the land until the owners obtained a court order. Anyone who evicted them was therefore in contempt of court.
Nkuna said metro police had interpreted the setting aside of the order differently – that the occupiers needed an order that explicitly said they had a right to be on the property.
Judge Monama dismissed the application, saying the court could not rephrase an order that effectively existed.
However, Advocate Emmanuel Sithole, representing EMPD, said metro police were misled by Mina Nawe, who gave it the order from 5 May (which was set aside on 25 June).
“When EMPD [evicts people], we are not doing it on our behalf. We are doing it on instruction from the court and on behalf of Mina Nawe … [The occupiers] can nail [Mina Nawe] all they want but it cannot be directed towards EMPD because we are just the messenger,” Sithole told GroundUp.
He said EMPD had been unaware that the matter was in court prior to the eviction.
“We have been made a party here, so now we know about this and we won’t be involved from here on out,” he told GroundUp on 1 July. But the next day, EMPD was on site evicting the occupiers for the third time.
Mashele said the occupiers will proceed with a contempt of court application.
The occupation started on 27 April when about 100 people from surrounding areas started demarcating stands and building structures on the vacant land. Some were unemployed and could no longer afford to rent. Others wanted to build their own homes.
Leader of the occupation, Steven Xulu, said some occupiers had been living on the land for a week, while others, including himself, were busy building when EMPD and SAPS evicted them on 6 May.
“The first thing I did was approach EMPD and ask them to show me a court order, but they couldn’t show it to us,” said Xulu.
He said the police started burning materials. The community retaliated by protesting in the street. To disperse the crowd police fired rubber bullets, said Xulu.
Xulu and ten other people were arrested for trespassing and public violence. Nine were released on R500 bail, but two remained in custody due to complications with their IDs.
Maria Nkosi had spent one night in her shack. She was cleaning when she heard “screaming and loud noises”. “I went to see what was happening and that’s when I saw the police demolishing and burning structures,” she said. “I left with my handbag, ID and some pots … They also took my materials so I don’t know how I am going to rebuild now.”
Victor Matsomane was erecting his shack at the time of the eviction. He and some of the other occupiers are the grandchildren of former farm workers who used to work the surrounding land before it was developed. They say the land was donated to them and the community when the owner relocated in 1991.
“We have suffered for too long. This land belongs to the community so why shouldn’t we live here?” asked Matsomane.
But Mina Nawe’s Nkomo said the former farm workers had been misled. He said the 16,000 hectares of land was bought by Mina Nawe for R7.2 million in 1996 and the occupied land was intended for a new township with 1,700 residential stands.
“When we started Mina Nawe, our aim was to build affordable housing for the community … so we hope that the government will buy about 30% of residential stands for RDP and low cost housing,” he said.
Nkomo could not provide a timeframe for the development, but the aim was to get the sewers and water running by early 2020. He said he was happy that the occupiers took the matter to court because it would show them that the land did belong to Mina Nawe. He also said he was thankful for the support from EMPD in assisting him with evictions.
“I don’t understand how [the occupiers] think they can have a right to be on my dwelling … Let’s say they do have the right, who is going to supply them with water and sanitation? How do I get water connected for my enemy?” asked Nkomo.“You would think talking to them would make them understand but they have just escalated this issue … My biggest mistake was making myself accessible … I have been too lenient on them.”