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landlord and occupier rights Archives | Eviction Lawyers South Africa

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 They must be “stayed”, or suspended, until either the Disaster Management Act is withdrawn or such time as the government announces otherwise.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:

Tenant risk: 5 metrics to consider

By | Evictions, Lease Agreement, Tenants

Spotting high-risk tenants

At Eviction Lawyers South Africa, we help property owners and landlords manage their tenant relationships. Eviction should be a last resort. Avoiding the need for eviction starts with tenant selection. As this article from BizCommunity explains, there are certain risks to look out for. If you can avoid letting your property to high-risk tenants, you are in for a much smoother ride.
Reprinted from BizCommunity – 2021-06-07
According to the results from the annual PayProp State of the Rental Industry survey, over 50% of participants said finding good tenants in the current market is their biggest challenge.
tenant risk

Image source: www.pexels.com

“In the coming months, it will be even more important for rental agents to be able to distinguish a low-risk tenant from a high-risk one, thereby better serving the needs of their customers,” says PayProp head of data analytics Johette Smuts.

In a recent follow-up report, the quarterly PayProp Rental Index for Q1 2021, the company uses credit metrics to identify and analyse different tenant risk levels to further help agents be more informed when choosing prospective tenants. As Smuts says, “In a market where everyone is struggling to find good tenants, it pays to know what to look for!”

Smuts says that minimum-risk tenants represented almost 40% of the credit checks done through PayProp in Q1 2021 – slightly higher even than in Q1 2020. More than 60% of tenants fall into the combined minimum- and low-risk categories, while only a quarter were labelled as high-risk. “While this seems counterintuitive, it could be that high-risk tenants fall out of the vetting process even before a credit check is done.”

1. Income

Smuts explains that minimum-risk tenants tend to have higher incomes than those in other categories, and by quite a margin. “In Q1, this group had an average monthly net income of close to R42,000 – almost R8,000 higher than low-risk tenants, and more than R15,000 more than high-risk tenants.

2. CPA and NLR accounts

Tenants across all risk categories have between 9 and 11 Credit Provider Association (CPA) accounts and National Loan Register (NLR) accounts.

Smuts says there is a fundamental difference between the two, with CPA accounts regarded as ‘good’ debt and NLR credit as ‘bad’ debt on credit checks. “You can expect a prospective tenant to have several CPA accounts, including things like insurance, mobile phone contracts, retail stores and vehicle finance,” she says.

“NLR accounts, on the other hand, are the ones you don’t want to see on a credit check. These include short-term loans from micro-lenders, usually with very high interest rates. A higher number of bad debt accounts can be indicative of a prospective tenant having needed additional funds to make it through the month or not qualifying for credit from other providers, both of which are warning signs.”

3. Major delinquencies

Unsurprisingly, high-risk tenants had more major delinquencies against them than other groups, at 41% of the tenant survey base compared to 25% of medium-risk tenants. A major delinquency can include various types of negative entries on an applicant’s credit record, such as judgements, notices, adverse accounts, etc. Less than 1% of minimum-risk tenants had a major delinquency against their name.

4. Debt

Riskier tenants tend to have a higher debt-to-income ratio than lower-risk ones, meaning they spend a higher percentage of their monthly income on debt repayments each month.

High-risk tenants both have a higher debt-to-income ratio (on average 47% in Q1) and spend smaller amounts on their debt repayments. The average high-risk tenant spent just over R12,500 a month on debt and other financial obligations, compared to minimum risk tenants, who spent almost R15,000 a month on repaying a lower average debt burden faster (25% of their income).

5. Credit score

Since tenants are placed into risk categories based on their credit score, minimum-risk tenants have higher (better) average credit scores than higher-risk tenants. The difference between the two is almost 100 points (690 vs 592).

Smuts says that in this time of economic difficulty, exacerbated by Covid-19 and tenants exiting the market, agents are well advised to have robust tenant selection partnerships in place.


SD Law is a law firm in Cape Town and Johannesburg with specialist eviction lawyers. If you are seeking an eviction, advise on drawing up a lease agreement, or help with troublesome tenants, we can advise you on how to act in the best interests of everyone involved. Contact Cape Town attorney Simon Dippenaar on 086 099 5146 or email sdippenaar@sdlaw.co.za.

PIE and Airbnb or guest houses – eviction rights and wrongs

By | Evictions, PIE

PIE & Airbnb – are your guests protected?

 

What happens when guests book into an Airbnb property or a guest house and then refuse to leave? This happens more often than you might think, especially with Airbnb lets, because the hosts are usually ordinary homeowners with a bit of extra space, which they let out to supplement their income. Airbnb is built on the premise of the “sharing economy”, where people share underused assets for cash. The sharing economy is based on a peer-to-peer business model rather than a conventional commercial paradigm. Because most Airbnb hosts are not professional landlords, guests may take advantage of the more relaxed relationship. This happens particularly when a property owner rents out a home that is not occupied. This occurred when a group of activists outstayed their rental period in a Camps Bay mansion last year. 

Evictions under lockdown

The past year has been unusual…some would say unprecedented. We have been living under a national state of disaster, of varying levels, which has impacted on normal policies and procedures. Under Alert Levels 5 and 4, no evictions were permitted. Under the first round of Level 3, a court could grant an eviction order if it was just an equitable, but even then it would be “stayed” until  after the national state of disaster was lifted, or such time as the rules allowed. Under Alert Level 1, the courts could grant an eviction order, allowing tenants a reasonable time frame to find alternative accommodation and vacate the property. Landlords had a duty to prove the eviction was just and equitable.

Then we found ourselves back in Alert Level 3 – “adjusted”. Under these rules, evictions were once again being granted but not executed, but the court would allow an eviction if it believed it was not just or equitable to suspend or stay the order. This might occur if, for example, an occupier was causing harm to others or posing a threat to life, or if the party applying for the order had taken reasonable steps in good faith to make alternative arrangements with all affected persons.

Alert Level 1 – adjusted

We are now, at time of writing, living under an adjusted Alert Level 1. The prohibition against eviction remains. In the words of the Disaster Management Act 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.” However, the Act goes on to cite a range of conditions that must be met in order for an eviction order to be executed, reflecting the circumstances that existed during Alert Level 1 the first time round.

PIE & Airbnb: what does this mean for Airbnb hosts and guest house proprietors?

Amidst the ever-evolving regulations and the general confusion that prevails regarding rental housing and many other aspects of life under lockdown, it’s not surprising that some guests are taking their hosts for a ride. They claim protection not only under the Disaster Management Act but also under the Prevention of Illegal Eviction Act – PIE.

However, PIE does not apply to guest houses, hostels or Airbnb premises. A case appeared before the Western Cape High Court 10 years ago – Yussuf and Another v Ye Khan Investments CC and Another. Applicants claimed that the premises they occupied constituted a hostel and not a guest house, and they were entitled to protection from eviction.

The judge found for the respondents, saying that the PIE Act “…was passed to provide some protection to squatters and other persons who were occupying land or premises unlawfully and without any leases because they were desperate and had no other form of shelter or home.” A guest house does not qualify for protection in terms of the PIE Act because “…occupants in a guest house are occupying the premises for a fixed period of time with the express consent of the owner or the person in charge of the premises. This is a commercial property, like a hotel, which provides for short-term occupation of persons who are visitors and not to persons who are long-term occupiers of land or property because they have nowhere else to live.” 

Protection for destitute persons

The judge continued, “I also do not accept that there is a difference between a ‘guest house’ and a ‘hostel’ which would render the latter susceptible to the provisions of the Pie Act, but not the former…That is not the purpose of the Act or the Constitution which provides protection to persons who are destitute and have taken refuge in some or other property because they have nowhere to live. The Act cannot be applicable to persons who move into a guest house or hotel.”

PIE & Airbnb – is it different from a guest house?

Airbnb was founded in 2008 but did not arrive in South Africa until 2010. At the time of the judgment referred to above,  Airbnb was not a significant player in the accommodation industry and did not merit a mention in the case. However, despite being untested in case law, Airbnb functions as a guest house or hotel for its users and is usually chosen as an alternative to these types of traveller accommodation. Therefore, it is hard to imagine an Airbnb guest being treated any differently in law to a guest house or hotel guest.

Get professional help from a leading eviction attorney in Cape Town

If you are an Airbnb host or guest house/hotel proprietor with a guest who won’t leave when they are due to check out, give eviction attorney Simon Dippenaar a call or send a WhatsApp to 086 099 5146. SD Law is 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. You can also email Simon at sdippenaar@sdlaw.co.za.

Further reading