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

eviction attorney Johannesburg Archives | Eviction Lawyers South Africa

Alert Level 1 evictions granted as long as they are just and equitable

By | COVID 19, Eviction law case summaries, Eviction news, Lease Agreement

A recent case from the Swartland shows fair consideration for all parties in an eviction

In the early stages of the National State of Disaster brought on by COVID-19, evictions were not allowed. It would have been politically contentious and downright unfair for people to be evicted from their homes just when we were all required to stay at home. As hard lockdown gave way to gradually lessening restrictions, the status of eviction orders also changed. For a while eviction orders could be granted but not executed, unless a tenant posed a danger to the landlord or the property. Now, as we near the ninth month of the State of Disaster, there is light at the end of the tunnel for property owners. Alert Level 1 evictions are being granted. In this article we look at the factors that constitute a reasonable eviction case. 

Case by case

We have reviewed recent cases that have resulted in successful Alert Level 1 evictions, and have gained an understanding as to what the courts consider to be fair (or ‘just and equitable’ in law). Furthermore, there are time parameters that must be met before the court will order the Sheriff to physically evict the tenant. 

Philander v Makiet 

While PIE and other rental housing legislation protects tenants against impetuous and unfair treatment by landlords, owners also have the right to the use and enjoyment of their property. As such, they must be allowed to evict a tenant who is illegally occupying premises. In an effort to ensure both parties’ rights are respected, confusion has arisen as to what the courts will allow. Several cases have been heard that have helped the courts to define just and equitable eviction proceedings during this unprecedented time. 

The case of Philander v Makiet was a significant watershed, decided by three judges in the Western Cape High Court. Although they arrived at the same conclusion, two of the judges expressed quite different reasons for their opinions. The judgment clearly explains the factors they considered in granting the Alert Level 1 eviction order, and what conditions must be present generally in the current environment. 

In determining justness and equality, the court stressed that all relevant circumstances should be considered. What exactly are those circumstances? The judgment states: “Among those circumstances the availability of alternative land and the rights and needs of people falling into specific vulnerable groups are singled out for consideration.” In this case the tenant was a 19-year-old male with no dependants, whose grandparents and sister lived not far away.

The time frame also matters 

The availability of alternative accommodation is a key consideration. The time frame given for the tenant to vacate the premises is also important. And it must be reasonable not only for the tenant but also for the property owner: “…what date would be just and equitable upon which the eviction order should take effect. Once again, the date that it determines must be one that is just and equitable to all parties.”

In Philander v Makiet, the tenant was originally given notice to vacate the property, fully within the terms of PIE and the Consumer Protection Act, more than 18 months previously. There was ample time to find suitable alternative accommodation. As there was no cooperation on the part of the tenant, and considering a wide array of circumstances, the court awarded eviction from the premises, to be vacated by 31 October. This was more than a month from the date of the eviction order.  

Secure a successful eviction

This case demonstrates that the courts will grant an eviction order under Alert Level 1, allowing tenants a reasonable time frame to find alternative accommodation and vacate the property. If you are a landlord seeking eviction, you must make sure you can prove that your eviction is just and equitable. The illegal occupancy of the premises is not the only factor the court will look at. A judge will want to be satisfied that the tenant has access to alternative accommodation. Courts need to know that tenants will not be left destitute and without shelter. 

You can facilitate this process by requiring your tenant to provide an address for potential alternative accommodation in the lease agreement. This will ensure they have a viable option, should you need to terminate the lease, and the court will be assured of the tenant’s security if you have to apply for an eviction order under Alert Level 1. 

For further information

SD Law is a law firm in Cape Town and Johannesburg with specialist eviction lawyers. If you are seeking an eviction, we can advise you on how to construct your case to meet the court’s requirements, as evidenced by recent case decisions. Contact Simon at Cape Town Eviction Attorneys on 086 099 5146 or email sdippenaar@sdlaw.co.za.

Further reading:

What’s covered by the rental deposit

By | Lease Agreement, Rent, Rental deposit, Rental Housing Act

This article, from the Personal Finance section of Independent Online, is a clear and helpful explanation of the purpose of the rental security deposit.

rental deposit
File Image: IOL

Reprinted from iol.co.za – 2020-10-06

Following a period of lockdown restrictions that put severe pressure on the income levels of many households, some landlords have had to go through the costly process of applying for a court order to evict defaulting tenants. Adrian Goslett, regional director and chief executive officer of RE/MAX of Southern Africa, explains that the rental deposit exists largely to protect the landlord against defaulting tenants and the lengthy, expensive process that is involved to evict them.

According to Goslett, tenants are protected by the Prevention of Illegal Eviction from Unlawful Occupation of Land Act, No. 19 of 1998, also known as the PIE Act. If the correct procedures are followed, it can take at least eight to 10 weeks for an eviction order to be granted during which time the landlord is out of pocket. “Besides the fact that the landlord is not getting a rental income from the defaulting tenant during that period, they will also have to pay legal costs. An unopposed eviction could cost between R12 000 and R20 000 in legal costs plus disbursements, while the cost of an opposed matter will be substantially more. Section 5 of the Rental Housing Act, No. 50 of 1999 states that a landlord is legally entitled to request a deposit from their tenants. This deposit can be used to help cover these legal costs,” he explains.

With this in mind, most landlords request a deposit from their tenants before they move into the property. The amount that the tenant will be required to pay as a deposit is stipulated in the lease agreement. Conventionally, the rental deposit amount is equal to anywhere from one to even three months’ rent.

“When a tenant pays the deposit, the landlord is required by the Rental Housing Act to place the money in an interest-bearing account, held with a financial institution. The tenant is within their rights to request a statement of the interest earned on the money at any time during their tenancy. Even though the deposit is paid to the landlord, it remains the tenant’s money. The landlord is merely holding the money as a security measure, should the tenant default or breach the rental agreement. If the tenancy runs its normal course, the deposit along with all interest earned on the money must be paid over to the tenant at the end of the lease agreement period,” says Goslett.

However, he warns that the landlord is entitled to deduct from the rental deposit any expenses incurred repairing any damage to the property which occurred during the tenancy. “The remainder of the money must then be refunded to the tenant no later than 14 days after the restoration of the property as dictated by the Act. If repairs are done, the tenant can request to see all repair receipts to confirm that the money was spent to repair the damage they did to the property. The landlord cannot use the deposit for general maintenance or upkeep of the property. If there is no damage to the property, the full deposit and interest must be paid to the tenant within seven days of the lease’s expiration date,” he explains.

Should any disputes arise between the landlord and the tenant regarding the rental deposit, Goslett recommends they can turn to the province’s Rental Housing Tribunal. “The tribunal assists to mediate and resolve disputes between the parties. Before entering into a rental agreement, both the tenant and the landlord should familiarise themselves with their legal rights regarding the tenancy and the rental deposit. Knowledge of the relevant procedures can help prevent unpleasant and costly disputes down the line,” he said.

Links added by SD Law.

Do you have questions about your lease agreement or rental deposit?

Whether you are tenant or landlord, if you have questions or concerns about your existing lease agreement or security deposit, contact Eviction Lawyers for a confidential discussion. We will explain your rights and responsibilities to ensure a worry-free tenancy. Contact Simon now on 086 099 5146 or email him on info@sdlaw.co.za.

Further reading:

Shots fired as police and protesters clash over evictions

By | Eviction news, Eviction videos, Evictions, Protests

Reprinted from Talk of the Town, by Iavan Pijoos – 2020-09-29

Communities in the south of Johannesburg took to the streets on Monday morning to voice their frustration about possible evictions in the area.

Johannesburg metro cops and the police were out in full force in Lenasia South and Lawley early on Monday to contain protesters. Roads in the area were blocked with burning tyres, bags with rubbish, rocks and tree branches. Officers fired rubber bullets to disperse the crowd.

By midday on Monday, traffic was flowing but some roads were still being lined with rubbish and rocks. Heavily armed officers and police nyalas stood on the side of the road.

Children were removing some of the rocks as motorists were driving past.

Ennerdale ward 7 councillor Danny Netnow told TimesLIVE that the protests erupted after unconfirmed reports about possible evictions in the area. Netnow said the people were also unhappy about water and electricity cuts in the informal settlement.

He said schools had been closed after the protests around Ennerdale.

In recent months, the Red Ants have demolished scores of illegally erected dwellings — some made of brick and mortar — in the area, under instruction from city officials.

Contact us

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 eviction attorneys on 086 099 5146 or sdippenaar@sdlaw.co.za if you need advice on the eviction process or if you are facing unlawful eviction. We also offer online consultations.

Further reading: