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landlord and occupier rights Archives | Eviction Lawyers South Africa

Alert Level 1 evictions granted as long as they are just and equitable

By | COVID 19, Eviction law case summaries, Eviction news, Lease Agreement

A recent case from the Swartland shows fair consideration for all parties in an eviction

In the early stages of the National State of Disaster brought on by COVID-19, evictions were not allowed. It would have been politically contentious and downright unfair for people to be evicted from their homes just when we were all required to stay at home. As hard lockdown gave way to gradually lessening restrictions, the status of eviction orders also changed. For a while eviction orders could be granted but not executed, unless a tenant posed a danger to the landlord or the property. Now, as we near the ninth month of the State of Disaster, there is light at the end of the tunnel for property owners. Alert Level 1 evictions are being granted. In this article we look at the factors that constitute a reasonable eviction case. 

Case by case

We have reviewed recent cases that have resulted in successful Alert Level 1 evictions, and have gained an understanding as to what the courts consider to be fair (or ‘just and equitable’ in law). Furthermore, there are time parameters that must be met before the court will order the Sheriff to physically evict the tenant. 

Philander v Makiet 

While PIE and other rental housing legislation protects tenants against impetuous and unfair treatment by landlords, owners also have the right to the use and enjoyment of their property. As such, they must be allowed to evict a tenant who is illegally occupying premises. In an effort to ensure both parties’ rights are respected, confusion has arisen as to what the courts will allow. Several cases have been heard that have helped the courts to define just and equitable eviction proceedings during this unprecedented time. 

The case of Philander v Makiet was a significant watershed, decided by three judges in the Western Cape High Court. Although they arrived at the same conclusion, two of the judges expressed quite different reasons for their opinions. The judgment clearly explains the factors they considered in granting the Alert Level 1 eviction order, and what conditions must be present generally in the current environment. 

In determining justness and equality, the court stressed that all relevant circumstances should be considered. What exactly are those circumstances? The judgment states: “Among those circumstances the availability of alternative land and the rights and needs of people falling into specific vulnerable groups are singled out for consideration.” In this case the tenant was a 19-year-old male with no dependants, whose grandparents and sister lived not far away.

The time frame also matters 

The availability of alternative accommodation is a key consideration. The time frame given for the tenant to vacate the premises is also important. And it must be reasonable not only for the tenant but also for the property owner: “…what date would be just and equitable upon which the eviction order should take effect. Once again, the date that it determines must be one that is just and equitable to all parties.”

In Philander v Makiet, the tenant was originally given notice to vacate the property, fully within the terms of PIE and the Consumer Protection Act, more than 18 months previously. There was ample time to find suitable alternative accommodation. As there was no cooperation on the part of the tenant, and considering a wide array of circumstances, the court awarded eviction from the premises, to be vacated by 31 October. This was more than a month from the date of the eviction order.  

Secure a successful eviction

This case demonstrates that the courts will grant an eviction order under Alert Level 1, allowing tenants a reasonable time frame to find alternative accommodation and vacate the property. If you are a landlord seeking eviction, you must make sure you can prove that your eviction is just and equitable. The illegal occupancy of the premises is not the only factor the court will look at. A judge will want to be satisfied that the tenant has access to alternative accommodation. Courts need to know that tenants will not be left destitute and without shelter. 

You can facilitate this process by requiring your tenant to provide an address for potential alternative accommodation in the lease agreement. This will ensure they have a viable option, should you need to terminate the lease, and the court will be assured of the tenant’s security if you have to apply for an eviction order under Alert Level 1. 

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 can advise you on how to construct your case to meet the court’s requirements, as evidenced by recent case decisions. Contact Simon at Cape Town Eviction Attorneys on 086 099 5146 or email sdippenaar@sdlaw.co.za.

Further reading:

Our farm had to evict people: It was lawful and justified

By | Eviction news, Farm evictions

Francina Petersen was dismissed for chronic absenteeism and offered alternative accommodation

Reprinted from GroundUp – 2020-03-12, by Lance Bouma

I was astonished to read in GroundUp that Francina Petersen, who had worked on our farm, Anura Vineyards, as a more absent then present bottle packer for five years and was dismissed for chronic absenteeism, “helped build the farm into the multi-million rand enterprise that it is today, boasting a winery, cheese factory, beer brewing, jam-making, wedding venue and restaurant”.

Eviction lawyers

The author, one of the owners of Anura Farm in the Cape Winelands, writes that a high profile eviction was done lawfully and justifiably. Photo supplied

I’m afraid Francina Petersen is not exactly truthful here. Perhaps because she is a tad jealous of her husband Chris who is the true entrepreneur of the Petersen family. Chris and Francina’s father, Marthinus Cupido, were arrested and charged with theft of diesel, which they were allegedly reselling on the farm.

I’ve no doubt that Barbara Maregele’s heartbreaking story of another victimised, vulnerable farm worker tossed on to the streets with her children would have even your most hardened reader reaching for the tissues. But they’ll be pleased to know that underneath Francina’s tearful exterior there is a steely resolve.

Francina told the Sheriff, in no uncertain terms, that she did not want to be taken to the alternative accommodation provided by me in La Rochelle but wanted to be dumped on the street outside our farm. This was so that she could get the maximum amount of media publicity. You have to admire her. She was prepared to camp outside, night after night with her husband and children for the greater good of the Petersen family.

But she was not alone. The community led by Carmen Louw of Women on Farms rallied around her “angered by yet another family on a farm left destitute by an eviction”. Some, of course, may argue that Chris Petersen’s substantially higher salary in the construction sector as an earthmoving operator doesn’t exactly qualify him as destitute.

Women on Farms’s director Colette Solomon, who is no slouch when it comes to exaggeration, claims that “they were concerned that the farm owners were trying to evict the rest of the Petersen’s family including her father and brother”.

In fact, Marthinus voluntarily moved off our farm two years ago and lives with his daughter in Klapmuts. He worked for Anura from 1989 to 2014 and on that basis Anura provided him with a house. His belongings remain undisturbed in the house as they did two years ago when he left the farm and moved to Klapmuts. Her brother, Jonathan, is still working on Anura.

In accordance with the rule of law in which — astonishingly, not only the farmworker but the farmer has rights — the Paarl Magistrates’ Court and Land Claims Court weighed the evidence and competing rights of the Petersens and the Boumas and granted an eviction order against the Petersens on 15 October 2019. This gave the Petersens just under four months, until 7 February 2020, to find alternative accommodation.

The Petersens, in accordance with their contractual agreement, which gave them a house as long as they were employed on the farm were evicted (after refusing to move out) to accommodate farm workers who are currently employed on the farm, and who are in need of housing.

Lance Bouma is one of the owners of Anura.

Chris Petersen denied the allegation of diesel theft.

Views expressed are not necessarily GroundUp’s.

Some links added by SD Law.

Eviction specialists

There are two sides to every story, as this article shows, and at SD Law we are expert eviction attorneys who weigh up all the facts, on both sides. We are eviction lawyers in Cape Town and Johannesburg, and we believe the landlord-tenant relationship should be built on trust. We act for both landlords and tenants and uphold the rights of each to a fair and satisfactory tenancy. If you  need help with an eviction, either as landlord or tenant, contact Simon at Cape Town Eviction Attorneys on 086 099 5146 or email sdippenaar@sdlaw.co.za.

Further reading:

 

How to evict a tenant off a property if the landlord dies 

By | Evictions, Lease Agreement

What is the eviction process if the landlord dies?

If your landlord dies, you may wonder if you still have a home or if you will suddenly be evicted. And, as a landlord, what happens if your tenant dies? Is the estate liable for the rent or are you going to be left high and dry?

You're a tenant and your landlord has passed away. What happens now? Eviction lawyers

What is the eviction process if the landlord or tenant dies? The short answer is…the lease remains valid. The landlord’s or the tenant’s estate is bound by the lease and must honour the terms and conditions of the agreement. (Download a lease agreement template here.)

Can you be evicted immediately if the landlord dies?

As stressed in previous articles, having a written lease agreement is crucial as it protects the rights and obligations of tenants and landlords alike and makes dealing with the above scenario a whole lot simpler. Additionally, once the Rental Housing Amendment Act 35 of 2014 comes into effect, landlords will be compelled to draw up a written lease agreement

Lease agreements are not simply rendered invalid if the landlord dies. The tenant cannot be summarily evicted from a property. However, the terms of the lease agreement will determine the conditions under which the lease may be terminated. 

For example, a lease agreement may specify that the contract will automatically be cancelled when the landlord passes away. Should the executor of the landlord’s estate decide to sell the property, the executor is entitled to cancel the lease. Regardless of the reason for the cancellation of a lease, the landlord must generally give the tenant at least 20 working days’ to a full calendar month’s notice to vacate the premises in accordance with the Consumer Protection Act (CPA) and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act No 19 of 1998 (PIE).

If the tenant does not adhere to the time frame, the executor may then approach the court to apply for an eviction order.

When the tenant dies the estate is liable 

If the tenant dies, the estate becomes liable for the rent and must give the landlord 20 business days’ notice of cancellation of the lease. The landlord cannot remove the tenant’s belongings during that time. It may be wise for both tenants and landlords to establish the cancellation clauses in lease agreements to avoid uncertainty or any nasty surprises down the line. 

Seek expert guidance

Simon Dippenaar and Associates 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: