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Lockdown and the law | What is the state of play regarding evictions?

Can a tenant be evicted under lockdown level 3? Property Law Expert Simon Dippenaar has the following advice.

A number of evictions have hit the headlines lately, but are they legal? Or are tenants’ rights being overlooked? What about a landlord’s rights? Wouldn’t it be simple if there was an unambiguous “yes” or “no” answer to these questions? But, like so much in life, the answer is: “it depends”.

Striving for certainty

The job of the legal profession is to bring certainty in times of uncertainty, through the application of laws and rules. But right now the law is in such a state of flux it is hard for lawyers to keep up, let alone the general public. Just as restrictions started to ease slightly, the president reinstated the alcohol ban. It can be hard to keep track of what is and isn’t allowed. If you are a tenant or landlord currently struggling, as a result of the economic crisis, you may be wondering where you stand.

Commercial ubuntu

Lockdown has caused economic hardship for many people in society. And in most cases, no one is to blame. Many tenants who have never missed a rental payment or breached a lease in any way are now falling behind with their rent because their employers have not been able to pay them.  Landlords, in turn, badly need their rental income to make bond payments or maintain their property. Disputes may arise, where previously the landlord-tenant relationship was harmonious.

It’s important to understand the rights and circumstances of all parties in any transaction or dispute. In the current crisis, when many tenants and landlords alike are struggling – and sometimes failing – to meet rental and bond payments, “commercial ubuntu” is called for.

Lawyers, landlords and tenants need to exercise an element of social humanitarian concern in the enforcement of contracts.

Keep the lines of communication open

If you can’t fulfil your obligations concerning a contract, specifically a lease, engage the other party  in mediation. Make use of alternative dispute resolution tactics. Don’t cut yourself off and hope the problem will go away. It won’t.

The difficulties faced at present are community issues. While an inability to pay one’s rent may feel very frightening, feeling isolated and alone is even more daunting. Honest and open communication will foster empathy and understanding, and may help to generate solutions.

All role players along the chain need to embrace commercial ubuntu. This is not a time for parties to take advantage of each other. If you see a conflict looming on the horizon, engage the services of someone not emotionally involved, someone such as a managing agent or attorney who specialises in eviction law. They will help you arrive at an outcome acceptable to all.

Eviction and the law under level 3

Can you be evicted during level 3? PIE – the Prevention of Illegal Eviction Act – spells out the process of eviction. PIE ensures that eviction takes place in a just and equitable way, balancing the various opposing interests in the fairest way possible.

If there is a breach of the lease that can’t be remedied, either by holding over the rental arrears summons or other negotiation, a landlord may begin the eviction process and proceed with the eviction order. However, eviction orders are currently held in abeyance. It seems likely they will be executable under level 2, but this has not yet been confirmed. For now, a tenant may not be evicted from their home, even if the landlord has begun the process of eviction.

“It depends”

However, at the beginning of this article, we said the real answer is: “it depends”. For instance, in extraordinary circumstances,  if a tenant is so problematic that their continued occupation of the property puts the landlord in an impossible situation, and if the judge considers it is just and equitable to force the tenant to move out, then there can be an urgent eviction order. The tenant can be evicted under level 3. However, this has not happened to date.

For advice or information on your specific situation, whether a landlord or a tenant, consult a property specialist – an attorney or managing agent. Don’t worry yourself sick.

Article courtesy of Property 24