The courts and property law attorneys are going to have their hands full once tenant evictions are allowed, with a number of cases already lined up and waiting for the go-ahead to action.
Currently, eviction notices can be served on tenants in breach of their lease agreements but evictions cannot be carried out until the country moves to lower lockdown levels. This decision was made to protect tenants who have been negatively impacted by the national lockdown but attorneys say the regulations are encouraging some tenants to default on their rents.
Statistics from TPN show that the number of tenants in good standing deteriorated by a “significant” 8% to 73.42% in the second quarter. Of those tenants not up to date with their rents, TPN managing director Michelle Dickens says15.3% had made partial payments and 11.3% did not pay at all. “Tenants in the ‘did not pay’ category bottomed out at 19%.”
Landlord complaints to keep rising
Attorney Ismail Vally, mediator at the Rental Housing Tribunal and director at Vally Chagan & Associates, says it is “undeniable that tenants have suffered greatly” as a result of the lockdown and that “valid claims of financial difficulty will have to be considered sympathetically”. However, he points out the lockdown does not constitute an automatic defence for the nonpayment of rent. “Each matter will be considered on its merits.”
When lockdown ends, he expects the tribunal to be “inundated” with tenant complaints relating to lock-outs and other acts of spoliation, such as termination of services and utilities, and complaints from landlords about unpaid rents.
“In my experience it is advisable for landlords and tenants to keep channels of communication open and to negotiate in good faith in order resolve matters amicably and in the interest of all parties...
“The anticipated influx of matters will be dealt with in terms of the processes of the tribunal in an impartial and objective manner.” Vally adds, though, that the tribunal does not have the authority and power to grant eviction orders. “Landlords seeking eviction orders are obliged to approach the high court or magistrate’s court for appropriate relief.”
Eviction orders on hold
Attorney Simon Dippenaar, founder and director of Simon Dippenaar & Associates which has offices in Cape Town and Joburg, says over the lockdown period, there has been a “slight increase” in the number of inquiries relating to rental agreements, especially from tenants.
Most landlords approach the firm only when they have credible cases and after extending some leeway due to Covid-19. Some eviction orders have been granted but only in cases that began before lockdown.
“The registrar and judges are reluctant to give court dates and make eviction orders. Judges are stricter now about making an order, especially about technical requirements...” From the inquiries that have been received during the national lockdown, Dippenaar says most cases relate to tenants not paying any rent.
“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 properties. Disputes may arise where previously the landlord-tenant relationship was harmonious.” When evictions are eventually permitted, he says, the courts will look at the circumstances of both landlord and tenant before granting eviction orders.
“Also, if the tenant can show that they have tried to the best of their ability to pay all or some of their rent, and are willing to negotiate a payment plan for dealing with arrears, the courts are very unlikely to grant an eviction order.”
Tenants hiding behind eviction protections
Commercial law attorney Maria Davey, partner at Meumann White Attorneys in Durban, says the firm has received many inquiries from residential landlords during lockdown. All are valid cases relating to tenants who have defaulted on their rental payments.
“The lockdown is encouraging tenants to default knowing they have the protection of the regulations. Some landlords rely on rents for income and are getting into debt as a result of the tenant’s default. And they cannot evict tenants in order to replace them with ones who will pay.”
The firm’s Venilla Govender says while no eviction orders have been granted yet, some applications have been set down for hearing. The vast majority (95%) of cases relate to tenants not paying any rent and the rest involve tenants who have been making partial payments.
When the cases go to court, Davey says the courts will enforce the terms of the agreements and, if tenants are in breach, the landlords will be legally entitled to cancel their leases and evict them.