Notice to South Africans: Please visit sacoronavirus.co.za for up to date information on the COVID-19 outbreak.
Tag

Coronavirus Archives | Eviction Lawyers South Africa

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.

Related reading:

Tenants from hell

When and how to sue a tenant

When and how to sue a tenant

Is it legal to evict anyone during lockdown? No, say legal experts

By | Eviction news

An army of red ants members arriving at Kokotela informal settlement in Lawley outside Ennerdale.

An army of red ants members arriving at Kokotela informal settlement in Lawley outside Ennerdale. (Ntwaagae Seleka, News24)

Evicting people from their homes during the national lockdown against the spread of Covid-19 is an offence and should be punishable by a fine or imprisonment.This is the view of legal experts amid the eviction of land occupiers in Lawley outside Ennerdale at the weekend.

News24 reported the Red Ants had demolished scores of shacks and houses in Lawley on Saturday, leaving many people homeless. They returned on Tuesday to continue demolishing structures.

This has led to a public outcry and has prompted Gauteng Human Settlements, Urban Planning and Cooperative Governance and Traditional Affairs MEC Lebogang Maile to clarify the actions of the City of Johannesburg at a briefing on Tuesday.

The government has made it clear that no evictions would be allowed for the duration of the lockdown “regardless of whether it is a formal or informal residence or a farm dwelling”.

But the issue of illegal land occupation during the lockdown could equally not be tolerated, Maile said on Saturday.

Following criticism, he said on Tuesday the destroyed structures were “actually new structures that were not occupied by anyone”.

This is an important consideration when it comes to the legality of destroying dwellings that are already occupied.

According to advocate and former judge Anna-Marie de Vos SC who specialises in socioeconomic and land rights litigation, there was a difference between stopping land invasions and evicting people from their homes.

“If you are in the process of invading land, in other words you’re putting up your structures and materials, that is invasion, and that can be stopped without a court order. That is called counter-spoliation. Spoliation is the concept of taking the law into your own hands.

“The argument of the municipality is that the [land occupiers] are spoliating – in other words, they’re taking land unlawfully, and therefore you can stop them with a counter-spoliation action.”

Catch-22 situation

But, said De Vos, there was a thin line between invading land and already living on it.

“The test would be: Do they already sleep there? Are their possessions there? Do they cook there? 

“Once that has been established – even if it’s just for a day or two – then people can’t be evicted. But if they’re still in the process of erecting buildings, then you are entitled to do that because it’s not an eviction you are stopping a land invasion.”

She added she had dealt with many cases where people have been evicted, even though it was clear from examining their dwellings they lived there – indications such as curtains, mattresses or cooking equipment. “That is not allowed.”

According to her, the situation under the lockdown made it exceptionally difficult for NGOs to determine the merits when it came to evictions, because of restrictions of movement and gaining access to the courts.

“You need to get a letter from the Legal Practitioners’ Council for every case – so it becomes a Catch-22 situation. When people are being evicted unfairly, they have no access to legal practitioners and legal practitioners have no access to them. You can’t get a letter unless you have a client and you can’t get a client unless you have a letter to go there.”

According to Louise du Plessis, the head of the land and housing programme at Lawyers for Human Rights, once people have occupied structures such as shacks, municipalities have to bring a court application to evict them, and the current lockdown regulations did not allow for that.

“Destroying homes where people already live is illegal. There is no way people can be evicted if they already live in those structures – not without a court order. For now, the government cannot touch them. They can bring an application after the lockdown and have them evicted then.”

What is the legal recourse for evictees?

Du Plessis said if it could be proven that people have been living in their structures, even for a short time, removing them was unlawful.

She echoed what De Vos said, adding it was impossible to get a case number without consulting with people, which was restricted during the lockdown.

“Anyone evicted unlawfully during the lockdown will have a good case to take to court on an urgent basis to go back to where they were,” said Du Plessis.

“Civil society – such as Lawyers for Human Rights, the Legal Resources Centre and Socioeconomic Rights Institute – should be able to access these people and assist them,” said De Vos.

“Second, NGOs, which specialise in social matters, should engage with the government – especially on municipal level – to stop them from illegally evicting people. If what I’m seeing is an illegal eviction and not merely stopping a land invasion, it’s a disgrace.”

Structures ‘incomplete, unoccupied’

On Tuesday, Maile said, subsequent to the demolitions in Lawley, “we had engagements with the mayor of the City of Johannesburg seeking clarity on the matter and he explained that the structures that were demolished were actually new structures that were not occupied by anyone”.

“What happened at Lawley last Sunday, was that we had planned a visit to the area along with the mayor of Johannesburg in order to undertake an assessment of the situation on the ground following the demolition of incomplete and unoccupied structures.

“These structures were demolished to prevent land invasions,” Maile said, adding the land was unoccupied.

On Sunday, the chairperson of the Portfolio Committee on Human Settlements, Water and Sanitation, Machwene Semenya, raised concerns over alleged evictions carried out by municipalities in Durban, Lawley in Johannesburg, and Cape Town.

In a statement, Semenya said the evictions were “unfortunate and inappropriate”, especially during the lockdown that was declared by President Cyril Ramaphosa to curb the spread of Covid-19.

“The evictions glaringly diminish the intentions of the lockdown and expose already vulnerable people to Covid-19 and other harmful elements such as crime and rainy weather.

“When the president and the executive announced that there will be no evictions, we understood that those instructions would be respected by all.

“It is therefore unacceptable that municipalities have undermined the spirit of the lockdown and have shown clear disdain and lack of empathy for the people, especially the poor,” Semenya said.

“We urge the municipalities to desist and refrain from any planned evictions henceforth, and to abide by the regulations.”

Semenya cautioned against the illegal occupation of land by communities; however, due to the lockdown, she said she hoped there would be no evictions.

“Illegal occupation of the land undermines the law of the country and should not be tolerated.”

On Monday, the City of Cape Town said it had delivered material to 49 households who illegally occupied a piece of land in Khayelitsha so as to adhere to the interim court order for temporary relief to these illegal occupiers during the remainder of the Covid-19 crisis.

The court will assess the merits of the case after the lockdown ends.

More videos

WATCH: 'I am going to vote but my heart is still sore' - mom living in tent in Paarl after eviction

1m 3s

WATCH: ‘I am going to vote but my heart is still sore’ – mom living in tent in Paarl after eviction

We would like to win that land in Stellenbosch because it belongs to us - 'Azania' residents

1m 0s

We would like to win that land in Stellenbosch because it belongs to us – ‘Azania’ residents

COVID-19: Housing Fallout_Untracked

1m 54s

COVID-19: Housing Fallout_Untracked

COVID-19: Housing Fallout_Broadcast

1m 54s

COVID-19: Housing Fallout_Broadcast

Scottish Government will seek to pass new law preventing tenants from eviction

52s

Scottish Government will seek to pass new law preventing tenants from eviction

WATCH | A peek into a Covid-19 'first-stage' shelter for survivors of gender based violence

WATCH | A peek into a Covid-19 ‘first-stage’ shelter for survivors of gender based violence

WATCH | Cape Town church provides meals for homeless during lockdown

1m 46s

WATCH | Cape Town church provides meals for homeless during lockdown

WATCH | Confusion inside Cape Town's biggest lockdown shelter for the homeless

WATCH | Confusion inside Cape Town’s biggest lockdown shelter for the homeless

Japan's 'net cafe refugees' seek shelter amid virus closures

1m 19s

Japan’s ‘net cafe refugees’ seek shelter amid virus closures

Inside the squalid Singapore migrant camp feared to be rife with COVID-19

1m 12s

Inside the squalid Singapore migrant camp feared to be rife with COVID-19

Vegas moves homeless population amid outbreak

44s

Vegas moves homeless population amid outbreak

Ramaphosa called on to stop forced removal of ‘occupiers’ during lockdown

By | Eviction news, Homeless

Ramaphosa called on to stop forced removal of ‘occupiers’ during lockdown

About 30 shacks were demolished on Thursday in Empolweni informal settlement in April 2020. Photo: Vincent Lali / GroundUp

Analyst blames the latest round of evictions on government’s failure to provide shelter to homeless communities.

Less than a month since Human Settlements Minister Lindiwe Sisulu made public assurances that no evictions would take place during the lockdown, her local government counterparts have done the opposite, with some having enlisted Red Ant Security Relocation & Eviction Services to forcibly remove people deemed to have occupied land illegally.

Scenes of communities being removed without being offered alternative accommodation in some parts of the country have led to a human rights body, the Anti-Repression Working Group (ARWG), appealing in a letter to President Cyril Ramaphosa and the Covid-19 National Command Council for intervention.

ARWG said South Africa experienced an upsurge in “alarming incidences of state violence and unlawful mass evictions of vulnerable people”.

“It does not give municipalities and security forces licence to use this disaster as an opportunity to exert power over the powerless,” said ARWG spokesperson Thato Masiangoako.

He said evictions were most prevalent in Cape Town, eThekwini and Gauteng.

“We appeal to the president to direct the Minister of Cooperative Governance, Nkosazana Dlamini-Zuma and Justice Minister Ronald Lamola to notify all local governments to halt all evictions,” said Masiangoako.

Human settlements spokesperson McIntosh Polela said: “The minister is currently in Cape Town, engaging the stakeholders and assisting the people that have been left homeless and destitute as a result of what happened in Makhaza.

“The information the minister was given was that those people were backyard dwellers who were kicked out by landlords in the informal settlements because they could not afford to pay the rent.

“They then tried to occupy empty shacks and were prevented from doing so by the police.

“People should not use the regulations to invade land. Municipalities will be right to prevent them from doing so.”

In recent weeks, Sisulu has been engaging mayors and councillors during a crusade to ensure evictions were suspended during the lockdown.

Her appeal included property owners.

Political analyst Ralph Mathekga blamed the latest evictions on government’s failure to provide shelter to homeless communities.

“Whether government evicts people or not, it will always remain with the problem of communities, who need closer monitoring during the lockdown,” he said.

“If there were adequate temporary shelters for the homeless, government would be able to focus on managing communities confined in one identifiable area.

“Practically, government is not in a position to evict people because it has no arrangement to provide temporary shelters.

“If we had such shelters, we would manage homeless communities better and would be able to enforce some form of social distancing, including other lockdown regulations.”

– brians@citizen.co.za

Source: Citizen (emphasis by SD Law*)

Further reading:

* 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.