Tag

Eviction attorney Archives | Eviction Lawyers South Africa

More than 600 refugees, asylum seekers living in squalor is not an emergency – City of Cape Town

By | Eviction news, Evictions, Homeless

Reprinted from News 24, by Jan Gerber. First published 13 December, 2019.

The City of Cape Town does not think that more than 600 people living in squalor in a church on Greenmarket Square constitutes an emergency.

This emerged during arguments in the City’s court application for an urgent interdict against foreign nationals living in the Central Methodist Mision church on Greenmarket Square.

The more than 600 foreign nationals sought refuge in the church after police forcefully dispersed a sit-in protest near the offices of the UN High Commission for Refugees (UNHCR) in October. They want the UNHCR to remove them from South Africa because of the xenophobic attacks.

On Monday, the City described the recent “sit-in” of refugees and asylum seekers in Greenmarket Square as a lawless action, a crisis and a situation which was damaging to tourism and reputation.

The City wanted an order prohibiting the sit-in and the flouting of health and safety by-laws, alleging that the group was affecting business in the area.

It also alleged that people had urinated and defecated in the streets, cooked over open fires, washed clothes and bathed around the church area, contributing to fire risks.

But Judge Kate Savage said everyone’s rights needed to be balanced and that those involved needed to find “an overarching solution”.

She ordered that a meeting be held between the parties, including the City, the Department of Home Affairs and the police.

However, when the matter was heard again on Friday, Savage was informed that a solution could not be reached.

“My Lady, it seems as if there is a deadlock,” advocate Adiel Nacerodien, for the City, told Judge Savage.

‘Human dignity has no nationality’

The sticking point proved to be finding alternative accommodation for the refugee and asylum seekers.

Nacerodien said the housing code prescribed that alternative housing could only be provided for evictions and homelessness or in cases of emergencies, such as fires and floods.

Advocate Seth Nthai, for the Department of Home Affairs, said he was “surprised by the stance of the City of Cape Town”.

He said they had a responsibility to provide housing and a safe environment.

“Human dignity has no nationality, it is inherent in all people,” he said.

Nthai also said the department was ready to begin with the verification of the refugees’ and asylum seekers’ identification, which would take about five days.

However, they couldn’t do it under the circumstances in which the refugees and asylum seekers were currently living.

The courtroom was packed with refugees and asylum seekers, most of them with tired, despondent expressions on their faces.

Judge Savage said it was an “untenable situation” that they were staying where they are.

Their spokesperson Jean-Pierre Balous told the court that they were about 500 refugees and asylum seekers, 90 undocumented foreign nationals, 68 asylum seekers who had lost their papers, and 268 children.

“If a solution can be found where people are treated as human beings…” he said.

Savage asked Nacerodien why it wasn’t an emergency.

“We all know this is a protest, my Lady,” he said.

He likened it to a situation of a hunger strike, saying if people refused to eat, they gave up their right to food.

“It is not an emergency in terms of the housing code,” he said.

“Is it not an overly technical approach?” Savage responded.

‘They have homes to go to’

Nacerodien said accommodation was a scarce resource and was supposed to be dealt with in an extraordinary situation.

“They’re not at risk of homelessness. They have homes to go to,” he said, while many in the public gallery shook their heads.

Savage said this allowed a situation where there was a “worrying lack of human rights”.

Nacerodien said that providing accommodation to refugees and asylum seekers was a core function of the Department of Home Affairs.

Balous disputed that the refugees had homes to go to, adding that they were homeless.

He said they couldn’t be prohibited from making fires, because they didn’t have another way to cook their food, and they didn’t have ablution facilities. He said the City had instructed neighbouring business not to allow them to use their bathrooms or provide them with water.

He also disputed that the refugees had harassed tourists and members of the public. Judge Savage said she viewed the situation as an emergency.

She asked Nacerodien if the City had accommodation available.

‘Implied eviction’

He said he would have to take instructions on it, and Judge Savage adjourned the court for an hour.

After the adjournment, Nacerodien said: “At the moment, the City is finding great difficulty in finding alternative housing.”

He said there had been an earlier offer from Gift of the Givers to provide the refugees and asylum seekers food, but he didn’t know if this offer still stood.

He said he could not get “firm instructions” from the City on providing ablutions.

Judge Savage said if she were to grant the City’s proposed order, it would be an “implied eviction”, as people couldn’t live without food or ablutions.

“What the applicant seeks is upholding the rule of law,” Nacerodien said.

“It was never the intention to create an eviction order by the backdoor.”

Judge Savage said: “It is of course very frustrating for the court to be faced by so intractable a situation.”

“We are not living there because we are happy with the conditions,” Balous said.

Judge Savage said they were back to where they were on Monday.

She asked Balous if he would like to file papers responding to the claims that they had harassed the public, to which he agreed.

“I remain of the firm view that this intractable situation must be resolved,” she said.

She also said she was “most dissatisfied” with the state of affairs.

Counsel, Balous and Judge Savage agreed in chambers to postpone the matter to January 22. Balous must file his papers by December 27.

Further reading:

Gauteng government in court over land invasions

Court declares shack eviction unlawful

Land occupation eviction process to come under spotlight

Evicting the homeless – municipality wrong

When and how to sue a tenant

By | Eviction notice, Evictions, Lease Agreement, Rent, Rental Housing Act

Is it worth your while to sue your tenant for rent arrears or other costs?

To sue or not to sue for rent arrears and other costs? Know the pros and cons.

There are many ways in which a tenant can breach the terms of the lease, triggering the eviction process, but by far the most common is non-payment of rent. While you may succeed in evicting the non-paying tenant, eviction itself may not result in settlement of the outstanding debt. To recover your rental arrears, you may have to take to the courts and sue your tenant. 

Why you might sue your tenant

Unpaid rent is the most obvious and the most common cause for litigation, but there are several other reasons why you might need to bring court action against your tenant or former tenant. Here is a fairly comprehensive list of grounds for a lawsuit, but there could be others.

  1. Unpaid rent: By law, if your tenant fails to pay the rent on time, you must notify them of your intention to cancel the lease and give them 20 working days to rectify the breach. If they fail to do so, then you can apply to the court for an eviction notice. Remember only the Sheriff can evict a tenant. However, you can sue them for the unpaid rent.
  2. Unpaid utility billsIf the tenant vacates the property, either via eviction or lease cancellation, any outstanding utility bills in the tenant’s name can be recovered. The first option is the security deposit. However, this may be inadequate to cover the amount owing.
  3. Damage to the property: Inspection of the property at the beginning and end of the lease is a vital step you must not overlook. You will only be able to claim that a tenant has caused damage to your property if you have conducted a thorough inspection and compared the moving-out state with the condition of the unit on entry. If the tenant has indeed caused damage, you can deduct the cost from the security deposit. If this is insufficient (and it will be if there is also unpaid rent), you can take your tenant to court.
  4. Unapproved alterations: The scope your tenant has for making alterations to the property will be dictated by the lease. However, any building alterations must be approved by you as the landlord. If the tenant has carried out work without your approval, you can sue the tenant for the cost of restoration.
  5. Tenant owes more than security deposit amount: If, for any of the reasons above, the security deposit has been exhausted and you are still owed money, you can take to litigation to recover the rest. 
  6. Recovery of lost rent if your tenant does a flit: If your tenant moves out before expiry of the lease, you are entitled to any rent they failed to pay as well as the remaining rent due on the lease. This is effectively lost income to you and they have a legal obligation to honour the lease if they did not terminate it through the proper channels.
  7. Cost of finding a new tenant: If your tenant moves out early without your agreement, you may need to find a new tenant urgently, if you rely on the income from the property. You may be able to claim compensation for the cost of advertising and credit checking new tenants.
  8. Expenses incurred in storing or disposing of abandoned property: As discussed in Abandoned Personal Property: What Should a Landlord Do?, you cannot dispose of a tenant’s property immediately. Therefore, if you incur storage costs and/or ultimately have to pay for disposal, you can sue the tenant for this cost.
  9. Tenant used the property for illegal activity: If you discover that your tenant used your property for an illegal activity, you can sue them to recover damages. However, unless the police have been involved, your suspicions may be difficult to prove.
  10. Keeping a pet against the terms of the lease: If your lease stipulates “no pets”, but the tenant has kept an animal on the property, you can sue for damages (this is a breach of the lease agreement) as well as for any damage actually caused by the pet (dirty walls, stained carpets, etc.). As above, the security deposit may cover the damage; then again it may not. But you will need proof, e.g. photographs of the pet. It may be difficult to claim that a dog caused a stain if you do not have evidence of a pet on the premises.
  11. Any other breaches of the lease: If the tenant has broken any other clause of the lease, resulting in financial loss or emotional or physical harm to you, you may need to claim compensation through the courts.

Possible benefits

Lawsuits are expensive, time-consuming, and stressful. If there is any other option for recovering money you are owed, a good eviction lawyer will usually advise you not to sue. However, there are potential positive outcomes from litigation that are worth bearing in mind.

  • Firstly, it is sometimes sufficient to threaten to sue. Often, on receipt of a court summons, the respondent will suddenly become very willing to negotiate and you will wind up settling out of court. They may know they will lose, or they may just want to keep their name off the court records. Their negotiation may seek a compromise and you may not succeed in recovering all your costs, but this may be a price worth paying to bring the matter to a close and avoid the hassle of a court case.
  • On the other hand, sometimes taking a tenant to court is the only way to recover your money, particularly where there is a dispute over damages. Without the force of the law, it may be difficult ever to see the money owed to you. In the case of damages, the entry and exit inspection reports, with photos, are essential to your case.
  • You may also wish to claim for additional damages. For example, in the case of #6 above, where a tenant vacates the property before the expiry of the lease, you can sue them for the rent remaining on the lease and possibly the cost of finding a new tenant.
  • If there is a risk that your tenant may malign your reputation as a landlord, even if you have acted entirely within the law, suing your tenant and winning is legal proof of your upstanding position.
  • Finally, your case against a trouble-making tenant will be on the record, should they ever try to sue you in future. A successful lawsuit is evidence that you have followed proper procedures and upheld all the laws regarding rental housing.

Risks

Of course, no action is without risk. We’ve outlined the benefits of litigation, but you should be aware of the risks as well.

  • Obviously, you might not win! Even if you feel you are in the right, there is no guarantee that you will win. Of course, a good eviction attorney will make sure you are fully prepared and have all your evidence in order, thus improving your odds. But it’s all down to the judge on the day.
  • Winning doesn’t automatically mean you will be paid. The tenant will have a court judgment against them, but collecting the money is another matter!
  • Litigation is costly, whether you win or lose. There is the court fee to pay, and the cost of an eviction attorney. You could represent yourself, but your chance of success is much greater with expert legal representation.
  • This is less likely, but you might provoke your tenant into a countersuit. If you lose, you might wind up having to pay out money to your tenant in court costs and legal fees. Again, if you engage the services of an experienced eviction lawyer, this is unlikely, but you should be aware of the risk.

Let Cape Town eviction lawyers help

If your tenants have left you high and dry and you need to recover money owed to you, either through the courts or out of court, contact Eviction Lawyer Cape Town, now also in Johannesburg and Durban. We are experts in eviction law and will ensure that you follow the proper procedures. We have an excellent track record in helping landlords and, with us on your side, the probability of getting your money back is excellent. Call Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za for a confidential discussion today.

Help, my eviction date is tomorrow and I don’t know what to do!

By | Eviction news, Eviction notice, Eviction orders, Evictions

If you don’t prepare, you might find yourself and your belongings on the street

This article is reprinted with permission from GroundUp, written by Shaun Russell, 06 December 2019. If you have been served with an eviction order and your eviction date is tomorrow (or soon), be prepared to move or face seeing your belongings on the street. This article tells you how to prepare.

Many people don’t do anything to prepare for an eviction, thinking that if they simply refuse to move, they cannot be evicted.

But if you have received an eviction order from the court and have not made an official appeal through a lawyer, then there isn’t much you can do to stop your eviction. The Sheriff of the court is legally allowed, and in fact obliged, to remove you from your home and the police can help the Sheriff physically remove you and all your belongings. People who do not prepare for their eviction can often find themselves and their belongings out on the street.

If your eviction date is very soon or has passed then you need to do the following:

Phone the Sheriff

If your eviction date has passed, phone the Sheriff to see if there is a warrant of ejectment yet. The Sheriff cannot remove you from your home without a warrant of ejectment. The Sheriff must go to court to obtain this warrant. If your eviction date has passed and you are still in the property, you can phone the Sheriff’s office and ask if they have the warrant of ejectment yet. You can also ask the Sheriff what day they are likely to come and evict you. The more you know, the better prepared you can be. If anyone comes without a warrant of ejectment. you cannot be forced to move. If someone without a warrant tries to forcefully remove you, you must call the police.

Store your belongings

Pack the most important things into a bag that you can carry. This includes things like ID books, passports, money, some clothing, and any other important documents or items that you will struggle to replace. Then you need to find a place for your other belongings, such as furniture and household items. Friends and family are the first people to ask, but if this is not possible, then you may need to pay for storage. The Sheriff’s office can take your stuff and store it, but you will be forced to pay a fee for the storage, otherwise your stuff will be put outside on the pavement.

Learn more about how the Sheriff executes an eviction here.

Look for alternative accommodation

This is often easier said than done. Again, friends and family are a good place to start. If this is not an option, then you will have to pay to stay in a short term rental place like a hotel or in someone’s home, or go to a shelter. Unfortunately, when you don’t have a lot of time, your options are very limited. You should look at this accommodation as temporary and when you do find a short term place to stay, you need to keep looking for longer-term options immediately.

According to the law, your local municipality has to provide you with alternative accommodation if being evicted will make you homeless. Go to your local housing office and tell them that you have no other options and that you need emergency housing.

See a list of shelters in the Western Cape here. See a list of Cape Town housing offices here.

Speak to a lawyer about an appeal

If you feel that your eviction was unlawful, you should speak to a lawyer to get an opinion on making an appeal. Legal Aid and other law clinics are only likely to take your case if they think there is a good chance that you were unlawfully evicted. If you weren’t paying rent, and there wasn’t a very good legal reason for this, then it is unlikely they will help you make an appeal.

To learn more about tenants rights and opposing an eviction visit the new Eviction Website Blog.

The author is the Evictions Project Manager for OpenUp. This information sheet is produced by OpenUp and first published on GroundUp. This is the third in a series. Read the second one here.

Do you need help?

If you have been served with an eviction notice and need the services of an eviction attorney to help you appeal, contact Eviction Lawyer Cape Town, now also in Johannesburg and Durban. Call Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za for a confidential discussion today.