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eviction order Archives | Page 2 of 7 | Eviction Lawyers South Africa

Jul 08
0
Urgent evictions South Africa

Urgent eviction order – why and how you might secure one

By | Eviction notice, Evictions, PIE, Tenants

Your tenant is causing havoc – how do you secure an urgent eviction order?

Under the current alert level of the Disaster Management Act (Adjusted Alert Level 4), eviction orders can be applied for and granted but not implemented. They must be “stayed”, or suspended, until either the Disaster Management Act is withdrawn or such time as the government announces otherwise. However, there are exceptions. An eviction order can be effected if it is just and equitable to do so. In some circumstances, an eviction is urgently required.  What is the process for securing an urgent eviction order? 

Determining “just and equitable”

We’ve covered the rules that currently apply to evictions in detail in a recent blog post. Here’s a reminder. A landlord wishing to evict a tenant must have regard for: 

  • The need for everyone to have a place of residence and services to protect their health and the health of others and to avoid unnecessary movement and gathering with other persons
  • The impact of the disaster on the parties
  • Whether affected persons will have immediate access to an alternative place of residence and basic services
  • Whether adequate measures are in place to protect the health of any person in the process of a relocation
  • The occupier’s behaviour, e.g. if they are causing harm to others
  • The steps the landlord has taken to make alternative arrangements of payment of rent to preclude the need for relocation

“Harm or threat”

A normal eviction takes between six and 12 weeks to finalise. An urgent eviction can be requested in instances where the landlord can prove there is a danger of imminent harm or threat to the property if the tenant is not evicted immediately. This harm or damage may not be to the landlord or the property itself; there can be the risk of damage to any person or property, as long as the harm has commercial value. For example, the harm could impact on neighbours or the communal area in a sectional title unit. 

A question of balance

In considering an application for an urgent eviction order, the judge will consider the likely hardship to the property owner (or any other affected person) versus the likely hardship to the unlawful occupier. The landlord will have to prove to the court that there is no other effective remedy available. A court will not issue an urgent eviction order lightly and all other possible solutions must be explored and exhausted before making the application. An urgent eviction order is a last resort. 

An urgent eviction application, like a normal eviction application, can be brought in both the High Court and the Magistrate’s Court. The Constitutional Court has upheld the constitutionality of urgent evictions but has cautioned against the abuse of tenants. Any landlord seeking an urgent eviction must comply with all elements of the law before proceeding with the application.

For further information

SD Law is a law firm in Cape Town and Johannesburg with specialist eviction lawyers. If you need to apply for an urgent eviction order, or just want advice on lease agreements or other aspects of tenant relations, contact Cape Town attorney Simon Dippenaar on 086 099 5146 or email sdippenaar@sdlaw.co.za.

Further reading:

Jun 21
0

7 tips for a successful eviction order

By | Eviction notice, Evictions, Tenants

It’s never nice to evict a tenant, but sometimes it is necessary. Follow these 7 tips to ensure a smooth process for you both.

 

Have you reached the end of your tether with a troublesome tenant? Or has your tenant ignored your notice to terminate the lease contract due to a breach on their part? Have they stopped paying rent or utilities? Whatever your reason for eviction, follow these 7 tips to ensure a successful eviction order.

  1. Engage a specialist. Evictions are technical and the courts are quick to throw a matter out if it fails to comply in any legal or technical manner. That means a waste of time and money, and will only add to  your frustration. Use the services of an attorney who is experienced with evictions and will get it right first time.
  2. Don’t try to evict the tenant yourself. This is illegal and can set the whole eviction back by months, wasting a lot of money. You may legitimately feel you are being exploited and have lost control of your property. It can be very tempting to try to find ways to get rid of the illegal tenant yourself. Resist the temptation. You could find yourself on the wrong side of the law. 
  3. Likewise, don’t cut off electricity, water or other utilities. The illegal occupant may have run up a huge bill, leaving you financially exposed. You may feel justified in disconnecting the services and you may hope it will force the occupants to leave. But this is illegal and can severely damage your case.
  4. Don’t harass the tenant. Constant calls or emails to the tenant or visiting the property in person is a counterproductive strategy because the tenant could obtain an interim protection order against you for harassment. Then you’d have two problems to deal with rather than one and your reputation could be damaged.
  5. Have faith in the process. Allow the relevant legislation to work in your favour. Trust the system, even if it seems unfair. If you follow correct procedure, the law will help you, and your eviction will be successful.
  6. Consider negotiating. An eviction application is the formal way forward, but this should be combined with an attempt to negotiate the illegal occupant’s exit. Let your attorney do this. Don’t attempt it yourself. Very often there are ways to convince an illegal occupant to leave rather than face litigation. Quite often they listen to reason and agree to vacate before you spend more time and money.
  7. Be patient. One of the hardest aspects of the eviction process is the need for patience. You have to wait for the process to follow its course. Evictions are not simple, and they take time. A good eviction attorney will ensure it takes as little time as possible. You just need to hang in there.

Need a good eviction attorney?

SD Law is a Cape Town law firm with expertise in property matters including rental housing, eviction and conveyancing. We can help you resolve your eviction case swiftly and legally. Give eviction attorney Simon Dippenaar a call or send a WhatsApp to 086 099 5146. You can also email Simon at sdippenaar@sdlaw.co.za.

Further reading:

Jun 14
1

Level 3 evictions and the eviction process

By | COVID 19, Evictions, Rental Housing Act

What is permitted under adjusted Alert Level 2 – oops! Level 3

Evictions under lockdown level 3 South Africa

With COVID-19 cases again on the increase, the government announced a return to Level 2 on 31 May. Fortunately for the hospitality industry and the liquor industry, the alcohol ban was not reintroduced, but this week, with new infections still rising and a “third wave” officially underway, government rapidly moved the country back to Alert Level 3. Curfew has been brought forward to 10pm, and hospitality outlets, which are still allowed to serve alcohol, must close by 9pm. Off-sales are restricted to Monday-Thursday, 10am to 6pm. But the rules regarding Alert Level 3 evictions are basically the same as they have been throughout Alert Levels 1-3. 

Evictions under Alert Level 3

As before, the aim is to protect vulnerable tenants. In the words of the regulations, “A person may not be evicted from his or her land or home or have his or her place of residence demolished for the duration of the national state of disaster unless a competent court has granted an order authorising the eviction or demolition.” Landlords may apply for an eviction order, but it will be suspended or “stayed” “until after the lapse or termination of the national state of disaster unless the court is of the opinion that it is not just or equitable to suspend or stay the order.” 

If the landlord does need to evict a tenant, they must have regard for: 

  • The need for everyone to have a place of residence and services to protect their health and the health of others and to avoid unnecessary movement and gathering with other persons
  • The impact of the disaster on the parties
  • Whether affected persons will have immediate access to an alternative place of residence and basic services
  • Whether adequate measures are in place to protect the health of any person in the process of a relocation
  • The occupier’s behaviour, e.g. if they are causing harm to others
  • The steps the landlord has taken to make alternative arrangements of payment of rent to preclude the need for relocation
  • Other considerations as described in the gazette

Rental housing 

The national state of disaster and its documentation stresses the importance of fair practice, strengthening the provisions of the Rental Housing Act 1999. The following conduct is deemed unfair practice:

  • The termination of services in circumstances where:
  • the landlord has failed to provide reasonable notice and an opportunity to make representations
  • the landlord has failed, reasonably and in good faith, to make the necessary arrangements including to reach an agreement regarding alternative payment arrangements, where applicable
  • no provision has been made for the ongoing provision of basic services during the national state of disaster
  • Imposition of a penalty for the late payment of rental where the default is caused by the disaster 
  • Failure of either party (landlord or tenant) to engage reasonably with the other to “cater for the exigencies of the disaster”
  • Any other conduct that prejudices the ongoing occupancy or the health of any person or the ability to comply with the applicable restrictions on movement 

For a full list of regulations, see sacoronavirus.co.za

The eviction process

Although the eviction order may be stayed under after the national state of disaster lapses, you may apply to the court for an eviction order. 

If a tenant is in breach of the lease agreement, you must follow these steps. You must not physically remove the tenant or their possessions, change the locks, or disconnect water or electricity. Doing so is a criminal offence and you could find yourself in court…for the wrong reason! The process is as follows:

  1. Serve notice to the tenant of the breach, giving them a defined period of time to rectify the breach. This will be determined by the terms of the lease, or if not specified it will be 20 working days, in accordance with the Consumer Protection Act (CPA).
  2. If the breach is not rectified, you can terminate the lease contract.
  3. You then give notice to your tenant of your intention to evict them through the courts.
  4. You apply to court to have a “tenant eviction order” issued to the tenant.
  5. The court issues the “tenant eviction order” to the tenant and the municipality whose jurisdiction the property is in, 14 days before the court hearing.
  6. The court hearing takes place. The tenant is entitled to offer a valid defence.
  7. If there is a valid defence, a trial date is set. If there is no valid defence, a “warrant of eviction” is issued to the sheriff. This authorises the sheriff to remove the tenant’s possessions from the premises.
  8. A trial begins or the court sheriff removes the tenant’s possessions from the premises.

Note that only a sheriff may remove the tenant’s possessions. Even if you succeed in securing an eviction order, you do not have the authority to remove their belongings yourself.

Legal advice is strongly recommended

While you can notify your tenant of your intention to cancel the lease without seeking legal advice, it’s a good idea to work with an eviction attorney from the beginning of the process. If the breach is not remedied and you pursue the matter through the courts, it will be reassuring to know that you have followed due process every step of the way. You don’t want your case to be thrown out on a technicality you have overlooked. Rental housing legislation is complex and, particularly in the current situation, rapidly changing. You need to be sure you are in compliance with the law and, more importantly, your tenants are treated fairly, especially in the context of COVID-19.

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 will make sure you meet the court’s requirements. Contact Cape Town attorney Simon Dippenaar on 086 099 5146 or email sdippenaar@sdlaw.co.za.