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Is there anything South Africa can learn from rules governing eviction in other countries?

As the COVID-19 pandemic tightened its grip on the world’s economy, many tenants, both residential and commercial, found themselves unable to keep up with rent payments, through no fault of their own, due to loss of income. Workers in low-paid jobs and industries were sent home, with furlough in richer countries, empty-handed elsewhere. Unable to trade due to lockdowns, small businesses with little in the way of reserves found themselves shutting up shop. Fortunately, most governments responded with relief measures. Some, including the UK, paid workers in badly affected industries such as hospitality 80% of their normal wage. Here in South Africa we had TERS (Temporary Employer/Employee Relief Scheme), although it has come under criticism.

Tenant protection from lockdown evictions

The protection of tenants from eviction was the most popular measure. Since mid-March 2020, many countries have suspended or banned evictions. In South Africa, evictions have not been allowed since the national state of disaster was announced at the end of March. When we reached Alert Level 1, evictions were once again permitted, but this was rescinded when we returned to Alert Level 3. A landlord may still apply for an eviction order, but it cannot be executed until the state of disaster is lifted.

This amnesty is primarily designed to protect tenants who fall into rent arrears as a result of the pandemic, though it also serves to ensure people have somewhere safe to spend the lockdown. An eviction may still be effected in extraordinary circumstances, for example if a tenant is causing harm to others or if the landlord has taken reasonable steps in good faith to make alternative arrangements for the evictees.  

Eviction bans

Other countries instituting eviction bans included Argentina, Australia, Canada, Colombia, Cyprus, El Salvador, France, Germany, Ireland, Italy, Luxembourg, Mexico, the Netherlands, New Zealand, Portugal, Spain, the United Arab Emirates, the UK and the USA. Most regulations referred to private residential property. However, in Germany and Portugal, tenants of residential and commercial properties were protected as well. France focused its protection on small and medium-sized companies.

France

In France, with her reputation for strong social support (and high social costs to employers), it is always illegal to evict people from their homes from November 1st to March 31st for any reason, to avoid literally putting people out in the cold. This winter reprieve was extended to July. The mayor of Paris further extended it until October 31st in the social housing sector. It is not clear if other municipalities followed suit, but the amnesty is in full force now, in the northern hemisphere winter.

Australia

On the first of April, Prime Minister Scott Morrison announced a nationwide moratorium on evictions for six months. When that expired, several states, including South Australia and Victoria, extended emergency relief for struggling residential and commercial tenants until the end of March 2021.

United Kingdom

The UK has devolved governments, so the rules vary between the four nations. In England and Wales, evictions were banned until 9th January. Given that England is back in nearly full lockdown due to the crushing second wave of COVID-19, housing charities say it makes a mockery of Boris Johnson’s “stay at home” message to lift the ban now. However, the minimum notice period for evicting a tenant is six months (doubled from three), due to remain in place until March 31st. In Wales, the notice period is also six months (other than for anti-social behaviour). In Northern Ireland, landlords must give at least 12 weeks’ notice to quit before applying for an eviction order.

And in Scotland, the temporary ban on eviction orders has been extended until the end of March, except for cases of anti-social behaviour and domestic violence. A six-month notice period is also in effect.

USA

In the United States, mortgage foreclosures were paused early in the pandemic. An eviction moratorium was also in place through late July 2020 that applied to federally funded rental units (generally occupied by the poorest in society). In September, the Centers for Disease Control and Prevention issued a nationwide moratorium on evictions that extended the protection to the majority of tenants in rented accommodation across the country.

Newly elected President Joe Biden has proposed an extension to the national moratorium until September 30th, and has earmarked funds for legal assistance to households facing eviction. Various states and cities have introduced their own measures. Back in March New York State, for example, enacted comprehensive emergency eviction and mortgage foreclosure moratoriums to protect renters and homeowners unable to pay rent or make mortgage payments. It recently signed into law the Emergency Eviction and Foreclosure Prevention Act of 2020, which protects residential tenants with COVID-19-related hardships, and homeowners and small landlords facing similar difficulties.

In practice…

What the law says and what happens on the ground are often two different matters. Despite our national ban on evictions, there was a series of high-profile lockdown evictions and shack demolitions by local authorities in the early days of the lockdown, particularly in Cape Town. Some of them were in response to illegal land invasions, but those invasions in their turn were often the result of the government’s failure to provide shelter to homeless communities. 

In Durban, several families, including pensioners, were evicted from a high-rise building. Loss of income meant tenants could only pay half or a portion of their rent. Despite a plan to repay the arrears and a meeting between landlord and ward councillor, the landlord removed tenants from 21 flats, defying the ban on evictions.

No ban can prevent landlords from taking matters into their own hands, as the Durban incident shows. There is a need for legal representation of tenants to ensure their rights are protected and landlords are held to account. The law can only be enforced if breaches are notified to the relevant authorities. Tenants often feel powerless to do this themselves.

We have good laws…

We just need to enforce them. Our official response to the social crisis caused by the pandemic, at least in terms of rental housing, is on a par with our global counterparts. The data is not available to show how we measure up in practice. It’s fair to assume that unscrupulous landlords exist everywhere, and how much they may have got away with will depend on the scrutiny of the housing sector exercised in their respective jurisdictions. 

We support our social justice organisations and other champions of vulnerable and marginalised individuals and communities in calling for all landlords to abide by the regulations and exercise commercial ubuntu in dealing with tenants struggling with rental payments.

Contact Cape Town eviction attorney today

Whether you are tenant or landlord, if you have questions or concerns about lockdown evictions, any aspect of the Alert Level 3 rules or your individual situation, contact SD Law for a confidential discussion. SD Law is a Cape Town law firm of specialist eviction attorneys and 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:

• Lockdown rights enforced for residents of informal settlements
• Evictions under the “adjusted” Alert Level 3 rules
• High Court declares the City of Cape Town’s lockdown evictions illegal