eviction order Archives | Eviction Lawyers South Africa

Tenants from hell

By | Evictions

Source: Eviction-specialists.co.za

How to avoid a nightmare tenancy

Whether you have managed rental properties for years or are a new landlord, sooner or later you are going to face the scenario every property owner dreads: the tenant from hell. Horror stories abound about dead animals, fixtures yanked from their fitments, and even (look away now) excreta smeared on walls – a last protest action before eviction. Fortunately these stories make the news due to their sensational nature but are not typical. Far more common is simple failure to pay rent or damage caused to property. The associated loss of income from this misconduct and an unlettable property while repairs are done can cause property owners to lose sleep.

If your dream tenant has turned into your worst nightmare, what actions are available to you and how do you ensure you remain compliant with rental housing legislation while protecting your asset and your interests?

Tactics of the nightmare tenant

While non-payment of rent is not the only behaviour that makes a tenant difficult or undesirable, it is usually the first indication that there is a problem, and often accompanies other unsavoury conduct. There are several tactics a tenant might use to avoid paying rent. It’s important not to fall for them.

  • Paying partial rent: A tenant may pay a portion of the rent owed. While they may promise to pay the balance the following month along with that month’s full rent, this is a warning sign and you are unwise to accept it. If you accept partial rent one month, you cannot begin the eviction procedure. The tenant has thus bought time, and in all likelihood will not pay in full the next month. You could reach the end of the lease with a large number of overdue rent payments, but you have forfeited your grounds for eviction. Don’t, whatever the sob story, accept partial payments.
  • Paying in cash: This is a tricky one because there is still a portion of South African society that is unbanked. The problem with cash is that it is untraceable and therefore if you take your tenant to court they may claim to have made rental payments they did not make, and you cannot prove otherwise. It is easy to produce a fake receipt. You need to be able to show a record of payments made and clear evidence of the months when rent was not paid. If the tenant does not have a bank account, there are electronic alternatives such as Paypal or other e-wallet services. If cash is the only option, give them a receipt that you both sign at the time and keep a copy for yourself.
  • The hardship story: Some tenants will ask for more time to pay rent, accompanied by a tale of woe designed to gain your sympathy. While their situation may be genuine, it is very hard to verify. However much compassion you have for their misfortune, you are not a bank or a charity. If they need a loan, they must approach family, friends, or financial institutions. If the tenant is a friend, this may feel like tough love, but it will make things easier for both of you in the long run.
  • The maintenance ruse: A tenant may claim that a property is uninhabitable or in need of maintenance, and withhold rent until the “fault” is addressed. Make sure your lease specifies how maintenance requests are to be made (in writing is best), and then acknowledge every maintenance request, track progress in a system, and provide the tenant with updates. If you respond in a timely manner to written requests for maintenance, the tenant has no grounds for withholding rent. 

Prevention is better than cure

Legislation provides landlords with the means to remove nightmare tenants. We cover that in a separate post. But it is better to avoid them in the first place. Tenant screening is a critical aspect of property management and taking shortcuts at this stage may cost you dearly later. Credit checks will tell you about past solvency but they don’t reveal anything about the character of the applicant. Reference checks can be faked, so it’s important to screen the tenant personally and carefully. 

Here are some tips to ensure your tenant verification is legitimate:

  • Always ask to see their original ID. Photocopies can be forged.
  • Verify their employment history. When contacting an employer, call the main office line listed on a website (not a cell phone). If this is not available – some tradespeople work from cell phone numbers as they are moving around all day but are still bona fide employers – ask them to send you an email from their company email as proof of legitimacy.
  • Call past landlords. Ask questions such as “can you confirm how much rent the tenant is paying?” This will help determine whether they are a genuine landlord or a friend. If possible, contact the landlord two or three tenancies past. The existing landlords may be keen to get rid of the tenant, and therefore give a good reference! Previous landlords may be more honest since they have no interest in the situation.
  • Reference check all adults who will be living in the property, not just the person signing the lease. At the risk of being politically incorrect, it does happen that a woman signs the lease because she is a low-risk tenant but her partner has a history of undesirable behaviour. Be sure to ask the main tenant how many people in total will occupy the property and what their names are. You don’t want your two-bedroom flat turned into a commune.
  • Keep a record of your property conditions and tenant interactions. Conduct regular inspections. We mentioned that non-payment of rent is not the only feature of nightmare tenants. Failure to maintain the property in a reasonable condition is also the source of much landlord misery. Frequent inspections will keep the tenants on their toes; it is much easier to keep a place in good order than to undertake a massive clean-up every three months. It will also allow you to spot potential breaches of the lease, e.g. evidence of animals when the lease explicitly forbids pets. If you fail to visit the property regularly you may actually encourage property damage because your tenants aren’t being held accountable.

You don’t have to go it alone

If you want to avoid renting to tenants from hell in future, we can help you screen prospective tenants and draw up a lease contract. Eviction lawyers are now in Johannesburg, Pretoria and Durban, as well as Cape Town. So wherever your property is located, we can help you find your dream tenant and avoid a nightmare.

Contact Eviction Lawyers South Africa on 086 099 5146 or email sdippenaar@sdlaw.co.za.

Further reading:

Evicted [squatters]: “The Red Ants broke into … shacks”

By | Eviction news, Homeless

A few days before Christmas, while residents of a farm behind Cradlestone Mall were at work, the notorious Red Ants marched onto the land and tore down their homes [… evicting the squatters].

“They were just breaking down the houses and destroying everything,” says community leader Jeanette Baleni. “It was terrible, I cried that day.”

The farm, in the west of Johannesburg, had been acquired by Absa’s development subsidiary Blue Age Properties 60 Ltd in 2014 and the bank had obtained an eviction order against the residents in 2015. Absa claimed the land had been illegally occupied, but because there was nowhere to move the people to, the eviction order was only acted on in December last year.

“They misled the court,” said human rights lawyer Tracey Lomax, acting for the residents who say they’re the descendants of farm workers on the property for generations.

“They were simply treated like squatters … as if they had moved in illegally the month before,” she said. Lomax explained that once an eviction order is granted, relocating people becomes the responsibility of the municipality – in this case, Mogale City.

Baleni said Absa held meetings with Mogale City about the relocation but had not consulted the residents. “In 2015 the municipality came to tell us we’re illegal occupants,” Baleni said, adding that they paid rent – some for as long as 10 years – through a scheme started by the previous property owner who had a security business.  

“We were renting from Gideon Ntini, from Interactive Security – he brought many of us here. He showed me the place actually,” Clayton Kamurai said, who also denied being an illegal occupant. Interactive Security National Sales Manager Renier de Meyer dismissed the claims.

Absa has denied that the process of eviction was flawed.  “The court went through a process of determining who had what interest in that piece of land before deciding to issue the relocation order. At no point was any such claim made by anyone, that is, from the time Blue Age became the owner of the land and throughout the consultation process,” Absa’s head of Media Relations Phumza Macanda said.

[The municipality] promised us stands, water, electricity and other things.

When contacted for help before the eviction happened, Mogale City councillor Molefi Sebilo told the community they would be moved to another ‘better’ place as soon as possible. A year went by until last October when Selibo informed the residents they were being moved in three weeks. The community drafted a letter to the Department of Rural Development and Land Reform in Pretoria demanding to know why they had been given only a three-week deadline. A November meeting held between the municipality, the community and the department to establish how the relocation was to proceed.

Broken Promises [to evicted squatters]

“[The municipality] promised us stands, water, electricity and other things,” Baleni said. Health-e News has a recording of the meeting where a municipality representative called Tshepiso Ndlovu is heard  saying: “At your new place, we’re going to install tap water, we’re going to give you stands, build toilets with running water and streets.” But according to the community, these were just empty promises. The reality was a disaster.

On 3 December Baleni was told the community would be moved two days later. Instead, the following day while residents were at work, the Red Ants arrived and broke into people’s shacks to move their belongings to the new place. 

“Furniture was broken, our things were stolen – even our money,” Baleni remembered. 

evicted squatters Cape Town
Blame Game: Absa and Mogale City Municipality are pointing fingers at each other for who was responsible for the relocation. (Photo: Health-e News TV Unit)

Blame Game: Absa and Mogale City Municipality are pointing fingers at each other for who was responsible for the relocation. (Photo: Health-e News TV Unit)

The community [and evicted squatters] said toilets only arrived after three days, and were inadequate. They currently share one working chemical toilet amongst 100 people and they have one illegal water connection provided by pitying neighbours and no electricity.

Some [evicted squatters] weren’t given any shelter and had to scrounge for materials in the rain to build a structure for their families. When Health-e News interviewed Mogale City municipality about the promises they made, councillor Selibo said: “I don’t know who promised them that [tap water and toilets]. They [the community] are telling a lie.” However, he admitted that Absa was in a hurry and there should have been proper planning for the relocation.

But Macanda argued this wasn’t Absa’s responsibility, but that of Mogale City which had three years to sort things out. Lomax, who works for Access to Justice and represents the Absa Squatter Camp community, said the treatment of the residents had been unfair. “Poor people are treated as if they don’t have agency … as if you are their father and you will let them know as much as you think they should know,” she said.

Any municipality tasked with eviction is constitutionally obliged to house people properly, Lomax explained. “My clients had strong ties to the land and we’re considering a damages claim.”

And now the neighbours and everyone relying on the water flowing from the wetland adjacent to the newly established informal settlement have been affected by the move. 

Mogale City Municipality has admitted that no environmental impact assessment was done, nor was the Department of Water and Sanitation notified. Residents argue the Absa Squatter Campsite is inappropriate because informal settlements on wetlands that don’t have proper sanitation could pose serious health and environmental hazards.

Human waste causes a high biological load that pollutes the water, water expert Anthony Turton said.  “Because the area is largely basement granite, the boreholes in the area are relatively shallow, about 30m deep,” he explained. “This puts the neighbour’s water at risk of contamination too.” 

The wetland next to the Absa Squatter Camp supplies water to the Crocodile River which feeds into the Hartbeespoort Dam, a strategic water resource. Local farmers are worried about the Absa squatter camp being on the wetland because they fear ecoli contamination of the water they rely on for growing vegetables.

According to Lomax, the municipality only secured the property a couple of months before the relocation. She explains: “That is a problem because wetlands are scarce and heavily protected by environmental legislation. I am astonished they were allowed to do this where there is a wetland nearby.” 

The municipality promised to put  in bulk infrastructure to deal with the poor sanitation. But a visit to the pump station about a kilometre away revealed that it hasn’t functioned properly for five years and overflows into the wetland, causing further pollution.

According Absa, the land was identified by Mogale City Municipality and Blue Age merely facilitated the acquisition and transfer of that land. The bank paid R3.6-million for the land and R3.1-million for the relocation – monies that will be recouped against bulk services at their Cradlestone property.

The [evicted squatters] feels betrayed and has lost hope, said Baleni. “I don’t think [the] Human Rights Commission will agree with the conditions we are living under, I want to see justice.” – Health-e News.

Source: HEALTH-e News (emphasis by Eviction Lawyers, SDLAW*)

*Cape Town Lawyers, Simon Dippenaar & Associates, Inc., is a law firm in Cape Town CBD of specialised eviction lawyers offering legal help to landlords and tenants regarding residential, commercial and farm evictions. Now helping clients in Gauteng and Kwazulu Natal.

Further reading:

Appeal of an Eviction Order

By | Appeal of an eviction order, Eviction law case summaries

CASE SUMMARY by Simon Dippenaar & Associates Inc.*

Tadvest Industrial (Pty) Ltd / Hanekom and Others (Case no.: 83/2018)

In the Supreme Court of Appeal of South Africa

Appeal eviction order - Eviction Lawyers South Africa
Source: IOL

The Magistrates Court for the District of Stellenbosch granted orders for the eviction of the Hanekom family and the Jacobs family from a property situated in Stellenbosch. In both cases, the Magistrates Court, in addition to granting the eviction orders, ordered that the landlord pay the sum of R80,000.00 to each family in order to assist them in relocating and acquiring alternative accommodation. The families were ordered to vacate the premises within 90 days of payment of the aforementioned amount. The landlord appealed against the orders for payment, in both matters, to the Land Claims Court (LCC). The families cross-appealed against the orders for their eviction.

The LCC dismissed the landlords appeal but upheld the cross appeal, which had the effect of setting aside the eviction orders. The landlord then applied for and was granted leave by the LCC to appeal to the Supreme Court of Appeal in both matters. The appeals were subsequently struck from the roll as the court did not have jurisdiction to decide on the merits of the matter.

The court found that the provisions of section 16 of the Superior Courts Act read with section 19 determines the jurisdiction of the SCA to hear appeals from the High Court. Section 16(1)(c) of the Act provides for an appeal against any decision of a ‘court of a status similar to the High Court’. The LCC was found to be one such court. However, the LCC powers are limited to those possessed by a High Court having jurisdiction in civil proceedings. The Court found that because the High Court sitting as an appeal court lacks the power to grant leave to appeal to the SCA, as the special leave of the SCA is required in terms of s 16(1)(b) of the Act, the LCC also lacks the power to do so.

Where the LCC acts as an appeal court in respect of an eviction order granted by the Magistrates’ Court, an appeal only lies to the SCA with the special leave of this court. Therefore, the LCC sitting as an appeal court does not have the power to grant leave to appeal to the SCA. As such, the court had no jurisdiction to hear the appeals and the appeals were struck from the roll.

As featured on IOL.co.za

Further reading:

*Simon Dippenaar & Associates Inc. are a firm of specialised eviction lawyers based in Cape Town and Gauteng, operating nationally.