Eviction and the lockdown

The Lockdown has resulted in various rental disputes between landlords and tenants. These disputes include tenants not paying rent as a result of inadequate or no income and owners having to sell their property as a result of the extra financial stress on the landlord from the tenant’s failure to pay rent.

The Disaster Management Act 57 of 2002, as amended states that: “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”.

Tenants are under the impression that they may not be evicted during the lockdown. Although the Disaster Management Act states that no person may be evicted from their home during the national state of disaster, regulation 70(2), which was published on the 18^th of September 2020, states that a competent court may grant an eviction order.

The order may be suspended or stayed till after the lapse or termination of the lockdown unless the court is of the opinion that it is not just or equitable to suspend or stay the order. Courts must give consideration to the following factors:

1. the need, in the public interest for all persons to have access to a place of residence and basic services to protect their health and the health of others and to avoid unnecessary movement or gatherings;
2. any restrictions on movement;
3. the impact of the disaster (Covid) on the parties;
4. the prejudice to any party of a delay in executing the order and whether such prejudice outweighs the prejudice of the persons who will be subject to the order;
5. whether any affected person has been prejudiced in their ability to access legal services as a result of the disaster;
6. whether affected persons will have immediate access to an alternative place of residence and basic services;
7. whether adequate measures are in place to protect the health of any person in the process of a relocation;
8. Whether any occupier is causing harm to others or there is a threat to life; and
9. whether the party applying for the order took reasonable steps in good faith to make alternative arrangements with all affected persons, including but not limited to payment arrangements that would preclude the need for any relocation during the national state of disaster.

Tenants must remember that the above is taken into consideration when the order is granted for the immediate eviction. The Landlord may still apply to a court for the eviction order and if a court is of the opinion that the aforementioned requirements are not met, the court may still grant the order, but suspend or stay it until the lockdown is lifted.

There are various laws in South Africa that govern rental agreements, including the Rental Housing Act (Act 50 of 1999), Law of Contract, Common Law, the Consumer Protection Act and the Constitution. These laws protect both the landlord and the tenant.

There however exists a contractual obligation on both the landlord and the tenant to adhere to the terms contained in the lease agreement. Failure to pay rent and sub-charges or portioned payment thereof results in breach of the lease agreement and the Landlord may, in terms of the lease agreement, cancel the lease if the tenant does not rectify the breach after being requested to do so.

Tenants should be wary of the fact that the Landlord also has financial commitments which might include bond instalments, rates and taxes and other sub-charges with the municipality, levies with HOA’s and Body Corporates and insurance of the property.  There is no law in South Africa which obliges a landlord to sponsor a tenant’s occupancy and basic services of a premises. There is also no obligation or law that states that a landlord must place themselves in detrimental financial position or provide housing and basic services to any other person in South Africa on their own account.

Although it is not a requirement, the parties to the lease agreement may, instead of resorting to immediate legal action, approach the Rental Housing Tribunal. The Rental Housing Tribunal provides a free service on rental matters between landowners or their agents and tenants. The main function of the Rental Housing Tribunal is dispute settlements between tenants and landlords. A decision by the Rental Housing Tribunal is regarded as an order of the Magistrate’s court. If a person fails to comply with the ruling, the person will be guilty of an offense.

Both the tenant and the landlord may approach the Rental Housing Tribunal to resolve and mediate the dispute between them. Regulation 71(1) of the National State of Disaster Management Act states that the Rental Housing Tribunals must determine fair procedures for the urgent hearing of disputes. It must be noted that the Rental Housing Tribunal does not have the jurisdiction to grant an eviction order – same is regulated by the Magistrates Court.

The Rental Housing Tribunal typically deals with the following issues:

1. Failure to adequately maintain the rental property;
2. Unlawful repossession of property and unlawful evictions;
3. Failure to accept notice and to vacate the premises;
4. Unlawful notices to vacate;
5. Unilateral changes to the lease agreement;
6. Failure to provide monthly statements or issue receipts;
7. Unlawful seizure of possessions.

When a tenant is in a predicament with regards to payment of his or her rent, they should communicate same to the Landlord.   Although the landlord is not obliged to negotiate the monthly rental, as there is already a lease agreement is in place which determines the monthly rental and/or sub-charges, they should however, in view of the lockdown and the affects thereof, consider the tenant’s position.

The tenant, in an attempt to show the seriousness of their commitment to resolve the dispute, should approach the landlord with adequate payment arrangements to settle the arrears.   The tenant should provide proof to the landlord of his/her financial position.   The arrangements should also include an Acknowledgment of Debt, which will secure and regulate the payment plan.

If the breach is a result of the tenant having lost his or her employment, the tenant should look for alternative affordable accommodation and together with their Acknowledgement of Debt include an Agreement to Vacate the Premises.  This will then place the landlord in a position to mitigate their damage and afford them the opportunity to lease the premises to tenants with adequate financial ability to cover the landlord’s financial obligations.

Tenants should also be reminded that eviction is not the only remedy available to the landlord.  The landlord may issue a summons for payment of the arrear rent or bring an application in terms of Section 32 of the Magistrates Court Act to secure its hypothec over the assets in the property.   If a judgment is obtained for the payment thereof, the tenant’s credit record will be affected. Most landlords, rightfully so, also require rental references, and failure to pay rent may affect these future references. The above will affect the tenant’s ability to conclude future lease agreements.   The landlord may also attach the tenant’s assets in terms of a court order

Tenants must note that they will be liable for the legal costs of the legal steps taken by the landlord to enforce their rights.  Same may also include interest on all arrear rent and possible damages the landlord may suffer.  The latter could have disastrous financial implications on the tenant.

In an attempt to avoid the above, it is in the tenant’s best interest to also try to resolve the dispute from their side and not just leave it to the landlord to enforce their rights. An eviction will have detrimental effects on both the landlord and the tenant.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)