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Coronavirus Archives | Eviction Lawyers South Africa

Evictions under the “adjusted” Alert Level 3 rules

By | COVID 19, Eviction news, Evictions, Lease Agreement, Rent

What is permitted under Level 3 rules?

There’s a strong sense of déjà vu in the country at the moment. If it weren’t for the weather, you might think it was July all over again. Despite high compliance with mask wearing and other COVID-19 prevention measures, we’re in the middle of a devastating second wave, partly due to a variant of the virus that does not appear to cause more severe illness but is considerably more contagious. So the government has had to rewind the Disaster Management Act back to Alert Level 3 (adjusted). Sale of alcohol is banned once again, and beaches and other public spaces are closed. What are the implications for landlords and tenants? Are evictions still permitted, as they were under Alert Level 1?

Alert Level 3 evictions – protection from eviction

Although the Level 3 regulations have been adjusted, certain core conditions remain. According to Section 37 (1) of the Disaster Management Act regulations for Alert Level 3, “A person may not be evicted from his or her land or home or have his or her place of residence demolished for the duration of the national state of disaster unless a competent court has granted an order authorising the eviction or demolition.”

Landlords may apply for an eviction order

However, the protection from eviction only extends to the execution of the eviction order. A landlord may still make application to the court for an eviction, which may be suspended or “stayed” until after the national state of disaster is lifted, or such time as the rules allow.

Furthermore, the court may allow an eviction if it is of the opinion that it is not just or equitable to suspend or stay the order. This might occur if, for example, an occupier is causing harm to others or there is a threat to life, or if the party applying for the order has taken reasonable steps in good faith to make alternative arrangements with all affected persons.

Commercial ubuntu

However, the regulations go to some lengths to stress the importance of fair practice by landlords…what we have called “commercial ubuntu”. The Act considers it unfair practice for a landlord to terminate services without:

  • Providing the tenant with reasonable notice and an opportunity to make representations
  • Making the necessary arrangements to reach an agreement regarding alternative payment arrangements, where applicable
  • Making arrangements for the ongoing provision of basic services
  • Waiving any penalties for the late payment of rental where the default is caused by the disaster, regardless of what form the penalty takes (e.g. a landlord cannot disguise it as an “administrative charge”)
  • Engaging reasonably and in good faith to make arrangements to cater for the extenuating circumstances of the disaster

This last point applies to both landlords and tenants. Government has called on all parties to engage with one another and keep the lines of communication open. This is the basis of commercial ubuntu.

Both parties may be impacted by the lockdown in its various guises. Tenants may have suffered loss of income and find it hard to pay rent. But landlords too may have bond payments to make that are affected by non-payment of rent. The rights and circumstances of all parties are equally important.

Landlords, tenants, lawyers and agents alike must all exercise social responsibility and compassion in the enforcement of lease conditions.

Don’t ignore problems

If your current situation is giving you cause for concern, don’t wait until the national disaster is over to take action. However bleak things may seem, there is always something that can be done. Talking to someone is the first step. If you don’t feel you can talk to the other party, talk to your lawyer or agent. At SD Law, we’ve been helping landlords and tenants negotiate leases and all manner of rental property matters for nearly 10 years. We can draw on our past experience to help you resolve your current issue. The sooner you take the first steps, the easier it is to find a solution.

Contact us today

Whether you are tenant or landlord, if you have questions or concerns about your existing lease agreement or the Alert Level 3 rules, contact Cape Town law firm SD Law for a confidential discussion. We will explain your rights and responsibilities and help you act with commercial ubuntu. Contact Simon now on 086 099 5146 or email him on info@sdlaw.co.za.

Further reading:

Poor Flat Dwellers Association wants to be protected from unfair treatment by landlords

By | COVID 19, Eviction law case summaries, Eviction news, Eviction notice, Eviction orders, Evictions, Homeless

Reprinted from IOL by Marvin Charles

The Legal Resource Centre, on behalf of the association, has sent a letter of demand to the government that all provincial Rental Housing Tribunal offices be reopened. File picture: Doctor Ngcobo/African News Agency(ANA)
The Legal Resource Centre, on behalf of the association, has sent a letter of demand to the government that all provincial Rental Housing Tribunal offices be reopened. File picture: Doctor Ngcobo/African News Agency(ANA)

Cape Town – The Legal Resource Centre has take the Co-operative Governance Minister, the Department of Public Service and Administration, the Human Settlements Minister and the Human Settlements MECs in all provinces to task to demand the reopening of all provincial Rental Housing Tribunal offices.

The centre’s spokesperson Thabo Ramphobole said they have been instructed by the Poor Flat Dwellers Association, and have sent a letter of demand to the government to demand the reopening.

“The Rental Housing Tribunal was established in all provinces to resolve rental housing disputes and to protect tenants and landlords from unfair practices. Rental Housing Tribunal is empowered to intervene to ensure that unfair practices such as illegal evictions, lockouts and interruptions to supplies of electricity and water are prevented, and to take appropriate steps where these occur,” Ramphobole said.

During the lockdown period, Rental Housing Tribunal offices around the country have remained closed. This is despite the regulations promulgated by the Minister of Co-operative Governance and Traditional Affairs – as amended on June 25 – which state that during Lockdown Alert Level 3, public service institutions such as Rental Housing Tribunal, may operate.

“If the tribunals continue to remain closed, it means that unscrupulous landlords may take advantage of tenants, many of whom rely on the protection and assistance provided by the Rental Housing Tribunal, to uphold and enforce their rights.

“The failure to respect, protect, promote and fulfil the rights of tenants is unconstitutional and unlawful and leaves vulnerable tenants open to possible rights abuses by their landlords, with no recourse other than approaching a court – a costly and often inaccessible route for many poor and vulnerable tenants,” Ramphobole said.

In its letter of demand the Poor Flat Dwellers Association states: “In the circumstances our instructions are to demand, as we hereby do, that steps be taken to re-open the offices of all the Rental Housing Tribunal subject to appropriate safety protocols, in all nine provinces forthwith, but definitely not later than July 13 (today), failing which proceedings will be brought to compel their re-opening.”

Human Settlements’ Minister Lindiwe Sisulu’s spokesperson Yonela Diko said the minister had not yet received the letter from the Legal Resources Centre with regards to Rental Housing Tribunal.

“The issue of enforcing lockdown regulations is very critical, particularly on evictions and the Minister is willing to speak to the Legal Resources Centre on how best to ensure people in rental houses don’t fall through the cracks and be subjected to illegal evictions by slumlords.

“The Minister has asked her legal team to arrange a meeting with the Legal Resources Centre to discuss the matter,” Diko said.

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

Further Reading:

Moving house and paying rent in lockdown level 4

By | Eviction news, Eviction notice, Evictions, Lease Agreement, Rent

South Africa is seeing a “slow relaxation” of Covid-19 lockdown restrictions related to the residential property market, but this “still comes as good news”, says Michelle Dickens, managing director of TPN Credit Bureau.

Her comments follow the latest lockdown directions released on May 7 by Cooperative Governance and Traditional Affairs Minister Nkosazana Dlamini-Zuma, allowing for limited circumstances where tenants and homeowners can move or relocate during Level 4 lockdown. This can be done until June 7.

TPN MD Michelle Dickens. Image: Supplied

“It’s important that we don’t have mass movement … so, what has happened is that we’ve had slow and deliberate allocation to who may move,” she tells Moneyweb.

“As of May 7, new directions were released which give effect to limited circumstances where tenants and homeowners can move or relocate in terms of new lease agreements or in terms of immovable property that was transferred,” she explains.

Read: A third of residential tenants won’t pay full rent this year

Dickens, who is co-founder of TPN and is also a non-executive director of Transcend Residential Property Fund, adds that the “limited circumstances” referred to in the updated regulations are related only to new lease agreements that were entered into prior to or during lockdown, or where immovable property was transferred prior to lockdown.

“The lockdown is defined in terms of the regulations,” she says, adding that this means tenants can move if their lease agreement was entered into before April 30, or if their immovable property was transferred prior to March 26.

Paying rent

Asked about tenants who now cannot afford to pay rent due to loss of income as a result of the lockdown, Dickens notes that this is one of the most frustrating dilemmas for numerous tenants as well as landlords.

“Many tenants are faced with a loss of earnings or limited earnings,” she says, adding that TPN has advocated the use of tenant income declaration documents, where tenants can declare what their circumstances are in terms of their loss of income.

“They must provide supporting documentation to prove the loss of income and they must also allow the landlord to contact their employer to confirm the loss of income,” she stresses.

Two options

“In these circumstances, where income has been lost, the tenant can then enter into a deposit utilisation or deferment agreement.

“What this effectively means is that tenant and landlord must both agree that the deposit can be used for the rent. The tenant further agrees that the deposit will be topped up, over a period of time, once the tenant is back in a position of earning income again,” she adds.

Dickens points out that the deposit utilisation option provides immediate cash flow for the landlord.

Likewise, in relation to the deferment of a rent option, she says the tenant and landlord could enter into an agreement that stipulates rental will be deffered for the lockdown period. “However, once the tenant is back in a position of earning again, they will reinstate or repay the deferred rent in instalment repayments.”

“This provides some relief for tenants in the short term, but what it does mean when they are back to earning again, is that they will be required to pay the rent in the ordinary course on a monthly basis, plus the catch-up of instalments in terms of the deposit or the deferred a rent,” she notes.

Andrew Schaefer, managing director of national property management company Trafalgar, shares similar sentiments on options available to tenants and landlords due to the impact of the lockdown.

“Landlords also need to know what options are open to them if tenants lose their income due to the lockdown or the economic effects of the Covid-19 pandemic,” he says

“If they are quality tenants who have previously always paid their rent in full and on time, we would suggest that they be asked to sign a waiver to the effect that their deposit may be used as rent for a certain time instead of it having to be held in trust,” he points out.

“It would be best if this agreement were drawn up by a professional rental agent… It should also contain a provision that the deposit is to be re-instated, perhaps in instalments, by a certain date, and that the landlord will be able take legal action if the tenant reneges on this arrangement,” he advises.

Schaefer says alternatively landlords may decide to give good tenants a “payment holiday” during the lockdown or even for the next couple of months, especially if they have been given a similar indulgence by their bank on their bond instalments.

“However, they do need to proceed with caution and make sure there is a written agreement in place that provides for them to withdraw the indulgence under certain circumstances; for the unpaid rent to also be re-instated before the end of the lease; and, for them to be able to take legal action if the tenant reneges on the special arrangement,” he adds.

The rules on evictions

Meanwhile, with regards to residential evictions, Dickens says that the initial hard lockdown effectively prohibited evictions. However, in terms of lockdown Level 4 and the new disaster management regulations that were released on April 29, as of May 1, landlords can now apply to court to get an eviction order.

Read: Evictions, power cuts heighten SA housing crisis amid lockdown

“The courts may grant the eviction order; however, the restriction is that the eviction order may not be executed on until the end of alert Level 4,” she points out.

“This means the tenant remains in the property and the sheriff will only be able to evict the tenant once we [have] reached the end of alert Level 4.”

Source: Moneyweb (emphasis by SD LAW*)

* SD Law, aka Simon Dippenaar & Associates Inc., is a law firm of specialised eviction attorneys, and property lawyers, based and serving landlords and tenants in Cape Town, Johannesburg, and Durban. If you need help, please contact Simon on sdippenaar@sdlaw.co.za or 086 099 5146.

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When and how to sue a tenant