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Eviction lawyers South Africa Archives | Eviction Lawyers South Africa

Courts must brace for tsunami of rental disputes as lockdown squeezes tenants

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

The provincial rental housing tribunals and the courts are most likely to be swamped with tenancy-related matters, specifically rental arrears and eviction notices.

The provincial rental housing tribunals and the courts are most likely to be swamped with tenancy-related matters, specifically rental arrears and eviction notices.

Durban – The provincial rental housing tribunals and the courts are most likely to be swamped with tenancy-related matters, specifically rental arrears and eviction notices.

The Organisation of Civic Rights team, faced by a huge volume of tenancy queries, continues to provide advice to tenants during the lockdown period. One of the tenants, a self-employed single mother whose livelihood has been severely disrupted, received a letter from her landlord’s attorney. Should she fail to vacate, the attorney indicated she would be charged a daily rate.

The tenant is contractually bound and therefore liable for the rentals as per her lease contract. Unless her landlord agrees to any proposal she can offer, the landlord may proceed to cancel her lease, which he did. Her lease was lawfully cancelled when she failed to pay the outstanding amount after she was given seven days’ notice to remedy the breach.

As for charging her a daily rate and consequently an exorbitant rental for failing to move out, this is not lawful since she pays rental monthly and not daily. However, once the lease is properly cancelled, the landlord can claim a higher rental as damages but the rental housing tribunal or the court can decide if the landlord is justified.

If the tenant lodges a complaint with the provincial rental housing tribunal, then the tribunal must first determine whether the notice cancelling her lease does not constitute an unfair practice. In addition, the tribunal must decide if the amount claimed is justified.

Only after the tribunal has made a decision, can the landlord start the eviction proceedings. Should the landlord pursue the intended eviction, the process can be lengthy if the tenant decides to defend it.

The amended lockdown regulations in level 4 allows a landlord to approach the court to apply for an eviction order. Once granted, it can only be executed after level 4. It is not possible for courts to merely grant an eviction order since a lengthy process is involved.

Can the tenant rely on the Covid-19 pandemic to justify her failure to pay rental? There are several legal experts in South Africa and abroad who have argued they might be a possibility for commercial tenants to rely on a force majeure clause in the lease as a defence. This would allow the party who is unable to perform his or her or its obligations to have such an obligation suspended or removed. In the absence of a force majeure clause, a party can refer to the common law doctrine of “supervening impossibility of performance”.

A party would rely on this principle if unable to fulfil their obligation due to an unforeseen, unavoidable event. A party would not be able to perform due to “an act of God”. The lease contract ends due to doctrine of “supervening impossibility of performance” since the party or parties are unable to perform their obligations.

It would appear that a force majeure clause and the common law doctrine of supervening impossibility of performance would not provide grounds for residential tenants who fail to pay their rentals and meet other obligations.

Reprinted from IOL.co.za  2020-05-20. Original links retained. Additional links by SD Law.

Simon Dippenaar and Associates Inc. are expert eviction lawyers. We can help you navigate the complex world of lease agreements. Call Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za.

Further reading:

Eviction notice got you in a panic?

No lease? No problem. Tenants still have rights.

What is the Rental Housing Tribunal?

Time to hit the “pause” button on evictions?

By | COVID 19, Eviction news, Eviction notice, Evictions

Elsewhere in the world legislation is ensuring tenants don’t lose their homes due to COVID 19.

Time to hit the "pause" button on evictions. Eviction Lawyers

As if we didn’t have enough to worry about. COVID 19 is making everyone anxious for their health. Although the vast majority of patients recover, in South Africa we have a very vulnerable population and a weak health system, so widespread infection will wreak havoc in families and communities. Furthermore, those who have recovered describe the illness as extremely unpleasant, leaving them very weak for a considerable time. It’s to be avoided at all costs, hence the severe restrictions we are all living under and the lockdown that we are about to begin. 

Beyond the literal threat the virus presents to health, up and down the country businesses have been closing, particularly in hospitality, and now all activities but essential services must cease while we all stay indoors for three weeks. If employers can’t afford to pay wages, employees will be sent home with no income. How, then, are they meant to pay their bills, including rent?

Some lenience on loan re-payments

As of 23 March, all the major banks have announced some provision for hardship caused by COVID 19. Standard Bank has announced a three-month payment holiday for small businesses with a turnover of less than R20 million, and for full-time students with student loans, to start on 1 April and run until 30 June. For other loans, including mortgage bonds, customers are urged to contact the bank. The other major banks are also assessing the situation and either inviting customers to contact them individually or waiting to see if they need to take more radical steps.

What about tenants?

Homeowners with bonds can hopefully expect some mercy, but what about tenants with rent to pay? In places where the pandemic has a tighter grip, legislative measures have been put in place to protect renters. Around the world, cities in the US and countries including Spain have temporarily halted evictions in response to the COVID 19 pandemic.

In England and Wales, the Housing Secretary has said, “Emergency legislation will be taken forward as an urgent priority so that landlords will not be able to start proceedings to evict tenants for at least a three-month period.” Up in Scotland, similar action is proposed. The Housing Minister said, “No landlord should evict a tenant because they have suffered financial hardship due to coronavirus and we are actively considering how best this can be addressed.” 

A spokesperson for a tenants’ association said: “Up and down Scotland, tenants are facing not just a major health crisis, but the prospect of destitution and homelessness too. As their workplaces begin to shut their doors, it is hard to see how tenants who are already struggling to make ends meet will be able to pay their rent. It is unconscionable that anyone should even have to worry about being evicted from their home at this time.”

The situation here in South Africa is similar, and arguably will be worse, given our levels of poverty and disadvantage. At SD Law we support the 31 NGOs who have come together to appeal to President Cyril Ramaphosa, his Cabinet and Chief Justice Mogoeng Mogoeng to follow in the footsteps of our international counterparts and forbid evictions during the current crisis. After all, in a lockdown, it makes no sense at all to put people out on the streets.

Stop the “ejectment” if not the eviction

We understand that there may be situations where the eviction is not only legitimate, but long overdue. Perhaps a tenant has significant arrears with rent or has damaged the property. We’re not advocating for the entire eviction process to be overturned in these circumstances. A fair and just procedure can be resumed in due course, when life returns to normal. But this is not the time to execute a warrant of ejectment, i.e. to put the tenant out.

Look after good tenants

We would also urge landlords to exercise leniency in the case of good tenants who suddenly cannot pay their rent because they have lost their jobs or income due to COVID 19. If a tenant has a history of timely payments and full compliance with the terms of the lease, they should be treated compassionately and a repayment plan worked out when the crisis is past.

From a purely commercial perspective, even if the appeal to our shared humanity is in vain, evicting a good tenant because they can’t pay their rent is unlikely to result in replacement income. No one is looking to move right now. And a property could sit empty far longer than the time it takes for the existing tenant to recover. Good tenants are worth looking after.

Contact Eviction Lawyers for help

We are eviction lawyers in Cape Town and Johannesburg.  We act for both landlords and tenants and uphold the rights of each to a fair and satisfactory tenancy. In these uncertain times, we appeal to everyone to act with empathy and compassion. If you are worried about your tenancy or your tenants, contact Simon at Cape Town Eviction Attorneys on 086 099 5146 or email   sdippenaar@sdlaw.co.za.

Update 27 March:

In the government gazette released last night (26/3/2020), all evictions and execution of attachment orders, both movable and immovable, including the removal of movable assets and sales run execution is suspended with immediate effect for the duration of the lockdown.

Update 26 March:

As we head into a lockdown that will straddle two months, you may be wondering what will happen if a lease expires during the three-week period? In short, no movement is allowed. A tenant cannot be forced to leave a rented property even if another tenant is lined up to move in. The incoming tenant also won’t be able to vacate their current premises. The extraordinary measures in place (see the government gazette for full list of restrictions) take precedence over other contracts in place, such as leases. Technically, landlords and tenants can pick up where they left off as soon as the lockdown is over, but in reality it may be easier for everyone simply to extend the lease by one month and push the moving-out or moving-in date back to 1 May. Everyone in the country is in the same situation.

Rent should still be paid for any occupancy beyond the lease expiry. If  the tenant is in financial difficulties, then a payment plan should be negotiated.

We’ve mentioned a “pause” on evictions to protect tenants who may be financially compromised as a result of COVID 19. But what about evictions that were already scheduled before this crisis emerged? Although the gazette does not mention eviction specifically, it is fair to assume that no movement means no movement. In effect, normal life is put on hold – paused – for three weeks. it will resume on 17 April.

Further reading: