Call us on +27 (0) 86 099 5146 or email sdippenaar@sdlaw.co.za if you need help drafting a lease agreement or for any property-related matters. Commercial property is often owned by a juristic person such as a large corporation or a pension fund. Only the municipality has the right to do so. Currently, verbal lease agreements are legally binding, but the as yet un-gazetted Rental Housing Amendment Act 35 of 2014 requires landlords to have a written lease agreement in place. SD Law is a firm of Cape Town and Johannesburg eviction attorneys with deep expertise in rental property. “Eventually, after quite a struggle, Mr Qolani got back into his house and sat on his bed, his head bleeding and in pain. If this will be via the security deposit be clear that the deposit will not be returned until the unit is fully cleared. However, tenants do sometimes leave unwanted items behind, and unfortunately your final joint inspection won’t reveal these, as the walk-through is usually done before the tenant moves out, to identify any repairs that may need to come off the security deposit. Whether you are a commercial tenant or landlord, it's important to have a carefully drafted lease that includes all your requirements and conditions. The lease may have expired and the tenancy ended amicably, or you may have served a notice of termination or even had to undertake an eviction procedure. The law also recognises the right of a property owner to the enjoyment of that property, and provides recourse to landlords whose tenants are in breach of the lease agreement. The onus then falls to the defendant to prove he has a valid right to occupation. Rental arrears? You must follow the correct process if the eviction is to be deemed lawful. Unless specified in the lease agreement, a tenant has 20 working days to rectify the breach in accordance with the Consumer Protection Act (CPA). These include a normal or urgent evictions process. The current bill on land expropriation without compensation – which is open for public comment – states that the courts should be the arbiter when determining whether the state should pay for expropriated land. Sufficient advance notice is required. Properly drafted, it should facilitate a harmonious relationship between the two. On 20 and 21 August 2020, the case between the SAHRC as the first applicant and the City of Cape Town as the first respondent was heard at the Western Cape High Court. The law enforcement officers sprayed his neighbour with pepper spray and forcibly gained entry into Mr Qolani’s dwelling, carrying batons and guns. Staff Writer 19 February 2019. The power of social media is immense. But you don’t have a written lease agreement and you’re not sure how to evict a tenant without a lease. Call us on 087 550 2740 or email sdippenaar@sdlaw.co.za for help with any property-related matters. It is unconscionable that anyone should even have to worry about being evicted from their home at this time.”. WESTERN CAPE DIVISION, CAPE TOWN. What are a landlord’s responsibilities and rights when a tenant leaves personal property behind? The case is brought by way of action or application proceedings in the High Court and by way of action proceedings in the Magistrate's Court. Martinus disconnected the Eskom supply when he installed a solar power generating system and no longer required electricity from the grid. Commercial evictions are handled either by the High Court or the Magistrate's Court. Are you experiencing issues with your tenant or landlord regarding changing of locks or cutting off services? The clarity and security of well-defined lease agreements could also stimulate foreign investment with its concomitant spin-offs. Therefore an agent can act as applicant in an eviction case, as long as they can prove they have the right to appear in court on behalf of the owner (this is known in law as "locus standi"). As their workplaces begin to shut their doors, it is hard to see how tenants who are already struggling to make ends meet will be able to pay their rent. The Western Cape High Court declared the City’s conduct unlawful and unconstitutional and emphasised that home demolitions could not be carried out without a court order during alert levels 3 and 4. In most cases, this will be obvious. You could put yourself at risk for an accusation of theft (at worst) or a demand for compensation (at best). A commercial tenant does not have the same attachment to a property as a residential tenant. But it does not mean that landlords don’t have rights. The landlord’s or the tenant’s estate is bound by the lease and must honour the terms and conditions of the agreement. South African contract law is derived from the Roman-Dutch law of contract. Many of the area’s residents are desperately poor and unemployed and have been the subject of at least seven evictions carried out without a court order. it will resume on 17 April. No! Now the ANC — the party, not the government, an important distinction to note — has proposed a new amendment to the current bill, which is still open for public comment. This is especially so in eviction matters. This might happen if there is excessive noise, there are pets on the property without permission, or rent is in arrears. The proposed amendment was reportedly adopted by the party at its National Executive Committee (NEC) lekgotla earlier this month and is expected to be voted on by ANC MPs in parliament in the coming weeks. Eviction | The Constitution is the backbone of society and South Africa is fortunate to have “the most admirable Constitution in the history of the world,” according to Harvard law scholar Cass Sunstein. The Amendment Act increases the rights of tenants and obligations of landlords and firms up the rules regarding inspections, deposits, the condition of a property and what should be included in the lease. A deposit protects landlord and tenant. Structures have mushroomed all over the province on government and privately-owned land, while metro police try to evict people, only for them to return days later. Becoming a tenant of your new place can be an exciting and also stressful time, moving all your property, travelling to a new area, leaving your old home behind, saying good bye to neighbours, freinds and relatives so why compound that with further legal issues. Home / New Sample y / Sample Of Eviction Notice South Africa. Navigating your way through an eviction and making sure you follow the correct process can be daunting. Some of the demolitions and evictions that occurred were as follows: On 9 to 11 April 2020 in Empolweni Informal Settlement in Makhaza, Khayelitsha, the ALIU demolished structures on land owned by the City. While commercial tenants do not enjoy the level of protection afforded residential tenants by PIE, the landlord must still follow due process. Doing it any other way would have derailed the process, he said. By Eviction Lawyers South Africa Mar 24, 2020 COVID 19, Eviction news, Eviction notice, Evictions. As if we didn’t have enough to worry about. By law, if “movables” have been left behind and you have taken reasonable steps to be sure the tenant has permanently left the property and abandoned the movables, you are within your rights to sell or dispose of the items as you see fit. The case was complicated (this was in fact an appeal against an earlier ruling, which was upheld) and the legal particulars of it of little interest to anyone but other lawyers, but it flagged some very important issues in the landlord/tenant contract, and the case inspired us to remind you of your rights and responsibilities as a landlord. What looks like junk to you could be a treasured item to your tenant. Is it worth trying to collect? Tenant with rental arrears? Specify that the tenant will be billed for it. When it comes to evictions in South Africa, there are three procedures that may be applicable. South Africa is 10 days away from new data regulations – with mobile customers soon to be spared from out of … Whether or not there is a written lease agreement, if a landlord allows someone to reside on a property and accepts rent, that is regarded as a de facto lease and is binding. We act for both landlords and tenants and uphold the rights of each to a fair and satisfactory tenancy. The man concerned, Bulelani Qolani, was removed from his home by City of Cape Town officials who were members of the Anti-Land Invasion Unit (ALIU). We can ensure you don’t wind up in hot water by helping you screen tenants. This can be done on expiry of the lease or on the occasion of a material breach of the terms of the agreement (usually rent arrears). protect South Africa's pariah: The undocumented immigrant’ (1999) 7 Indiana Journal of Global Legal Studies 339. Simon Dippenaar & Associates, Inc. is a firm of specialist eviction lawyers, based in Cape Town and now operating in Johannesburg and Durban, helping both landlords and tenants with the eviction process. Updated South African Immigration Regulation. The information contained on this website is aimed at providing members of the public with guidance on the law in South Africa. In these circumstances 20 business days’ notice of a breach is not required before being able to cancel the lease. This rule gives the tenant security of tenure and makes sure that the landlord follows procedure if there is a grievance. Around the world, cities in the US and countries including Spain have temporarily halted evictions in response to the COVID 19 pandemic. If a tenant has a history of timely payments and full compliance with the terms of the lease, they should be treated compassionately and a repayment plan worked out when the crisis is past. “Landowners who have seen the example of Zimbabwe should be more supportive of this process because you don’t want groups of people invading the land. No legislation may permit arbitrary evictions.” Section 26(1) of the Constitution further provides for everyone’s right “to access to adequate housing” and sets out the State’s obligation to ensure this right is upheld (Section 26(1). Serve notice on the tenant to remedy a breach of the lease agreement, Terminate the lease agreement if the breach is not remedied in the time given, Serve notice on the tenant of your intention to seek an eviction order through the courts, Apply to the court to have a tenant eviction order issued to the tenant. In some case the Consumer Protection Act(CPA) may apply, but if not, the relationship is governed by contract law. So much more than a mere communication tool, it’s a cornerstone of citizen journalism and can be one of the most effective ways in which ordinary people can tell important stories as they happen. This includes the terms of renewal, which are often left open-ended in commercial leases and can be a cause for dispute as the end of the lease period draws near. Lease agreements are not simply rendered invalid if the landlord dies. If one party reneges on their obligations, the other party is safeguarded by law from loss or the consequences of unlawful behaviour. Let Cape Town eviction attorneys handle your eviction. After applying, the court would issue an eviction notice South Africa through the court sheriff to the tenant and the municipality who is in charge of the area. Although the vast majority of patients recover, in South Africa we have a very vulnerable population and a weak health system, so widespread infection will wreak havoc in families and communities. Tagged: rental arrears, tacit hypothec, arrears collection. Or a positive move? Evictions in South Africa are regulated by either the common law or one of various statutes, depending on the type of land and occupier involved. Most of their belongings have gone, but not all. What’s more, if any evictions or demolitions are conducted with a court order in place, these must be conducted “in a manner that is lawful and respects and upholds the dignity of the evicted persons”. Unlike residential tenancies, there is no legislation specifically governing commercial leases, so a professionally prepared, written lease is essential for avoiding misunderstanding and disputes. Any legislation that contradicts the Constitution is deemed invalid. But this highlights the need for a rock-solid lease to be in place. In this scenario the landlord must give 20 business days' written notice of a breach of the lease agreement. The incident that occurred in Khayelitsha on 1 July wasn’t the only one of its kind. The tenant's rights in this situation are stronger than the right of ownership. While the personal property is in your hands you are liable for it and you don’t want to risk a damages claim. Tenants still have rights. In South Africa, the rental market has exploded over the last few years and many property owners have made the most of this by leasing out their property and while it’s a smart way to earn extra money there have been many cases of dispute that end up costing land lords thousands of rands because they simply weren’t clued up around the legal obligations. ... the Berman Bros commenced proceedings under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 19 of 1998 ... NEW NOTICE TO QUIT Together with the Housing Assembly and Bulelani Qolani, the SAHRC brought a case against the City of Cape Town as well as the Minister of Human Settlements, the Minister of Co-operative Governance and Traditional Affairs, the National Commissioner of the South African Police, the Minister of Police and the Western Cape Provincial Commissioner of the SAPS. Landlords have a right to claim any damages that may apply at the time of eviction, as well as rent arrears. Commercial rental is normally charged per square metre, rather than a flat rate for the premises. And a property could sit empty far longer than the time it takes for the existing tenant to recover. Contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za to discuss your property-related matters today. Simon Dippenaar and Associates are expert eviction lawyers. They may then only cancel the lease if the tenant fails to rectify the breach within the 20 days. CAMPS BAY MANSION OCCUPIERS SERVED WITH EVICTION ORDER, Source: https://www.news24.com/news24/southafrica/news/camps-bay-collective-rejects-housing-assistance-as-eviction-deadline-looms-20201008. IN THE HIGH COURT OF SOUTH AFRICA. In some instances a commercial tenant may be protected by the Consumer Protection Act (CPA). The landlord cannot cut off utilities and services due to non-payment. Moving house is a stressful time and it’s easy to overlook things. There are ways to recover them, but it may not be worth the cost. Notice in terms of the Rental Housing Act: In Luanga v Perthpark Properties Ltd 2019 (3) SA 214 (WCC) the court confirmed that the notice period under the Rental Housing Act 50 of 1999 must run from the beginning to the end of the month and not randomly. Property owners are also entitled to ensure that their property is treated with respect and the Act protects landlords from tenants who cause malicious damage to a rental property. And if eviction would lead to homelessness for any of the 184 occupants the order could not be granted until alternative accommodation could be found for them. “This is an orderly process. How much does an eviction cost? The tenant cannot be summarily evicted from a property. Contact one of our eviction lawyers on +27 (0) 86 099 5146 or info@sdlaw.co.za if you have been evicted unlawfully. If you are facing an unreasonable rent increase or an unfair eviction, contact Simon at Cape Town Eviction Attorneys on 086 099 5146 or email sdippenaar@sdlaw.co.za. How Constitutional law is transforming eviction law. While this threat of criminal liability for non-compliance has sparked concern, the legal certainty the Amendment Act provides should improve landlord/tenant relationships. The key, of course, is knowing your rights when facing an eviction. As long as you comply with the legislation, there is no reason to worry. Urgent relief was given by the Western Cape High Court to a number of residents whose structures were demolished. But it happens occasionally. A specialised eviction process is the third eviction procedure that can be used to remove the tenants from a property. Tagged: eviction, eviction lawyers, eviction attorney cape town, eviction costs, (As featured on: The Real Estate Investor Magazine April 2019 by Cape Town law firm SDLAW*). In England and Wales, the Housing Secretary has said, “Emergency legislation will be taken forward as an urgent priority so that landlords will not be able to start proceedings to evict tenants for at least a three-month period.” Up in Scotland, similar action is proposed. There are dozens of obvious and practical reasons why many individuals, families as … Simon Dippenaar has a BBusSc LLB degree and Professional Diploma in Legal Practice from the University of Cape Town, and is an admitted attorney of the High Court of South Africa. Home » Eviction Law South Africa » What Are A South African Tenants Rights? But it is the determination of “abandonment” that is problematic. Verbal agreements will no longer be binding. Commercial evictions do not only involve the removal of the tenant. And on 25 August 2020, judgment was delivered. In fact, there were several others that took place during alert levels 3 and 4, despite that fact that evictions were meant to be suspended until the last day of the alert level period. No one is looking to move right now. 8 During apartheid, the South African government attempted to divide South Africa We are able to efficiently navigate the complexities of eviction law and quickly provide solutions to all your property disputes. Although the cottage is part of a residential holding, the consultant is a commercial tenant because of the way the cottage is used. THE EVICTION PROCESS IN SOUTH AFRICAN LAW. A commercial lease is a form of contract. Of course, there was also the incident that received the most attention – the one that took place in Khayelitsha on 1 July. The Real Estate Investor Magazine April 2019, Commercial evictions: how a landlord can evict a tenant. In respect of the latter point, this report highlights how the constantly developing legal framework has given rise to a new cluster of relationships in relation to housing and eviction law. Thereafter, the matter is in the hands of the court. These should all be specified in the lease. However, the City made it clear those facing homelessness after their eviction would have to fill in an assessment questionnaire that would help them determine whether they should get housing in Philippi or not. She has been looking after the children since their mother has been recovering in a rehab facility. It still is. Landlords sometimes take the law into their own hands in an attempt to get rid of troublesome tenants. If a joint inspection does not take place, the property is assumed to be in good condition and the landlord may not later withhold the deposit for repairs or damages. There is a principle in South African law, derived from Roman-Dutch law, called "huur gaat voor koop", which translates as "only the lease and nothing more". So, make sure you understand the Amendment Act as well as your rights and responsibilities. The incoming tenant also won’t be able to vacate their current premises. In the case of land invasions, it may be difficult and burdensome to effect this notice. Read more to get all the info you need about renting or letting property. — You get justice in the next world. The extraordinary measures in place (see the government gazette for full list of restrictions) take precedence over other contracts in place, such as leases. The Housing Minister said, “No landlord should evict a tenant because they have suffered financial hardship due to coronavirus and we are actively considering how best this can be addressed.”, A spokesperson for a tenants’ association said: “Up and down Scotland, tenants are facing not just a major health crisis, but the prospect of destitution and homelessness too. They still have somewhere to sleep at night, and it is not that difficult to find an alternative location for a business. The Supreme Court of Appeal has upheld an eviction of an elderly couple and their mentally disabled daughter from a farm they had occupied since July … Landlord applies to court to have a “tenant eviction order” issued to the tenant. So, although section 26(3) of the Constitution has not amended our common law, it does mandate legislation that impacts the common law rights of landowners. This scenario will soon change, however. The ALIU is a specialised unit tasked with deciding which structures should be demolished on land they claim has been invaded. You can’t be sure. The collective of artists, who are occupying a Camps Bay mansion they booked through Airbnb, say they will not make use of the City of Cape Town's housing assistance in Philippi as the deadline for their court ordered eviction looms. But if that fails, dig out the references provided when the lease was signed. SAPS members will now have to be present during evictions and demolitions to ensure they are done lawfully, in line with South Africa’s Constitution and “in accordance with the SAPS’ constitutional duty to protect the dignity of the persons evicted”. Contact Cape Town Lawyer Simon on 086 099 5146 or email simon@sdlaw.co.za. Now can you put the items on the street or adopt them as your own? However, if the notice of cancellation is ignored and the tenant refuses to leave, the landlord may have no choice but to apply to the court for an eviction order. pages, these articles cannot and do not take individual circumstances into account and are not a substitute In places where the pandemic has a tighter grip, legislative measures have been put in place to protect renters. Everyone in the country is in the same situation. If found guilty, the landlord will be liable to a fine or imprisonment of up to two years, or to a fine and imprisonment. This case concerns an appeal of an earlier order for spoliatory relief. Good tenants are worth looking after. 7 G Muller ‘The legal-historical context of urban forced evictions in South Africa’ (2013) 19 Fundamina 369. He further warned that if this new proposal was not followed it could lead to land grabs such as those seen in Zimbabwe. One final reminder: you cannot evict a tenant under the current lockdown level 3. … Call us on 086 099 5146 or email sdippenaar@sdlaw.co.za. The latter has been criticised for “having no teeth”, especially regarding the inability of the Rental Housing Tribunal to enforce rulings. Cogger said the landlord’s justification for the 37% increase in rent was based on an increase in the property’s value, which meant Kamish was paying below the market level. ), Removing self-installed fixtures (depending on what your lease says about these), Notifying the landlord of any damage or issues in the property, Settling all utility bills and taking final meter readings. According to Cogger, the Rental Housing Tribunal has the power to determine what is a just and equitable rental. And while the law is on the side of landlords to claim arrears and cancel lease agreements, it also protects tenants from illegal removals. Unless there is a clause in the lease making provision for fixtures to be removed, or a separate contract to that effect, once a fixture is installed it becomes part of the premises and therefore belongs to the landlord. On 13 July 2020 in Zwelethu, Mfuleni, structures on land owned by the Western Cape Nature Conservation Board in Mfuleni, which joins city-owned land, were demolished. If the tenant does not adhere to the time frame, the executor may then approach the court to apply for an eviction order. Original links retained. However, practical and statutory weaknesses have made it difficult to enforce. 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. Call Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za. The time frames vary,. But what about evictions that were already scheduled before this crisis emerged? We can help you navigate the complex world of lease agreements. However, the tenant should be alert to the fact that the new owner may not wish to renew the lease, depending on their plans for the property. There is an exception to the definition above. Mr Maseko’s hard-won eviction order was rescinded and the matter was sent back to the High Court so that the judge could consider all the relevant circumstances. Motshekga added that no extension would be given for submissions to comment on the bill, which was published in December, ahead of the holidays. The South African Revenue Service (SARS) provides more information on the law of succession in South Africa. After all, they are not losing their home. Common law principles and procedures apply. If a tenant has attached something to a wall or ceiling, it is called a “fixture.” Examples of fixtures are built-in bookshelves, curtain rails or lighting units. "We do not think that the City's housing is viable for our safety. The DA has previously criticised the bill, saying that it is unclear how it defines land (appearing to include property – which has a different legal definition – in with its claims), while also bypassing requirements for a two-third majority vote by putting the powers over land expropriation in separate legislation, outside of the Constitutional amendment. The Rental Housing Amendment Act seeks to remedy the shortcomings of the Rental Housing Act 50 of 1999 and to provide better protection for tenants. We've turned to expert consultancy Black Pen Immigration to help unpack the 272 page government gazette that stipulates immigration law modifications. This is based on the terms of the lease and provides them with reminders of what they need to do, especially if they want to ensure the return of the deposit. This is known as rei vindicatio. Whatever the reason for your tenant’s departure, you find abandoned personal property left behind after they’re gone. Eviction Lawyers South Africa can help you secure the necessary legal consent. ), If the landlord and tenant are both juristic persons, If the tenant is a juristic person with an income/turnover above R2 million per year. 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. Tenant property is defined as any personal possessions, owned by your tenants or their guests, that they have moved into or onto the property. According to the magistrate’s decision, “the right to electricity is not ‘purely’ personal but ‘an incident of the possession or control of the property’ served by the supply of electricity…[and] the claimant’s occupation of the premises, and his or her use of its electrical appurtenances, constitute the possession of the premises and the quasi-possession of the alleged right to electricity as an incident of his or her possession of the premises.”. In this case, report it to the police. If there is a fixed term lease, Section 14 of the CPA applies. “He’s using gentrification as a justification for increasing the rent,” said Cogger. Evictions happen in cities and rural areas across South Africa every year. The court issues the “Tenant eviction order” to the tenant and the municipality that has jurisdiction in the area 14 days before the court hearing. The Amendment Act spells out standards for rental housing – a significant step towards improving the quality of housing accessible to the most vulnerable in our society. What this means for the tenant is that, in the event of a sale of the building leased by the tenant, the purchaser is obliged to honour the lease agreement. Abandoned personal property – what should a landlord do? Contact the employer or previous landlord (who may be a friend or family member). Whilst he was still inside, he states, the demolition was completed.”. A fair and just procedure can be resumed in due course, when life returns to normal. Reprinted from News 24, by Cebelihle Mthethwa - 2020-10-08. We are eviction lawyers in Cape Town and Johannesburg. So until you are absolutely certain the tenant is not coming back for their things, or sufficient time has passed to render it unlikely, keep the goods safe and sound. REPORTABLE. While we believe the information to be factually accurate, and have taken care in our preparation of these Subscribe. As if we didn’t have enough to worry about. Tagged: [keywords: nightmare tenants; tenants from hell; eviction; eviction lawyers; eviction attorneys South Africa; eviction order eviction procedure. They can exchange resources – such as money or their time – in the knowledge that they are protected by a legal agreement that is – or should be – fair to both parties. Rental housing legislation is premised on a fair right of occupation of a property and is strongly biased in favour of tenants’ rights. The as yet un-gazetted Rental Housing Amendment Act 35 of 2014 compels landlords to have a written lease agreement in place and is just one of the regulations that will further protect the rights of tenants and reinforce the obligations of landlords. Your arrangement with your tenant is not working out, and you’ve reached the point where you are considering eviction. What to do if the tenants from hell have turned your dream let into a nightmare. As we head into a lockdown that will straddle two months, you may be wondering what will happen if a lease expires during the three-week period?
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