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    Legal evictions: landowners need to know their rights

    Legal evictions: landowners need to know their rights

    Source: Farmersweekly.co.za

    The term ‘eviction’ has become a swear word in certain circles, and some non-governmental organisations are quick to make a connection between ‘bad, unfeeling farmers’ who evict people from farms, leaving them without refuge, and the call for expropriation without compensation (EWC) and security of tenure for farm dwellers.

    The reality is far more complicated, and this matter therefore deserves to be viewed from all angles.

    Land invasions are of great concern to farmers; certain political parties and other groupings have threatened farmers openly with unlawful occupation of land. It is important to understand the legal framework around such occupation, and especially the rights of the landowner.

    Not just a rural problem
    There are no reliable statistics for evictions in South Africa, but the perception exists that they occur primarily in rural areas and that farmers are mainly responsible. This is not necessarily true.

    All land not specifically zoned for other uses is deemed to be agricultural land. However, this does not mean that all land zoned for agriculture is used for farming purposes.

    Much land, especially around cities, is zoned for agriculture, but is in fact used for business or industrial purposes. And many large-scale evictions are as a result of proposed property development and urban expansion.

    Lawful versus unlawful
    Various laws, including the Extension of Security of Tenure Act (ESTA) and the Labour Tenants Act, make provision for eviction.

    These laws contain strict requirements and limited grounds for eviction, and strong protection of the rights of occupiers, even unlawful occupiers.

    These people may be evicted only with a court order, after proper notice is given, and all relevant factors, including the availability of suitable alternative accommodation, have been considered.

    As court rulings have evolved, it has become increasingly difficult for a landowner to obtain an eviction order. The courts do not issue eviction orders lightly.

    In the event of an eviction in terms of ESTA, a probation officer’s report is required, setting out the personal circumstances of the occupiers. A court may grant an eviction order only if it is fair and reasonable to do so, taking all circumstances into consideration.

    Previous court judgments have emphasised the importance of alternative accommodation. However, the owner’s rights must also be considered. In the case of City of Johannesburg v Changing Tides 74 (Pty) Ltd & Others (2012), Judge Malcolm Wallis ruled that the landowner cannot be expected to provide free housing indefinitely for members of the community.

    In a separate ruling, it was made clear that the owners also had an interest not to be deprived of the land without compensation. In the case of a lawful eviction, the interests of both parties must be fully considered, a process which could take years.

    A court normally weighs up all relevant factors before it grants an eviction order. Even then, the order is usually not executed immediately.

    An illegal eviction is where people are removed from the land against their will, and without the intervention of a court. This is a criminal offence for which a prison sentence may be imposed.

    Alternative accommodation
    A manual compiled by the Institute of Socio-Economic Rights that deals with evictions and alternative accommodation, states clearly that any limitation on private property rights resulting from the occupation of such property can only be of a temporary nature.

    It may continue only until such time as the state intervenes and provides suitable alternative accommodation. In practice, however, this poses a serious problem, as most municipalities do not have the capacity, or are unwilling, to intervene.

    Where the state fails to intervene, the landowner in principle has a claim for Constitutional damages based on the curtailment of his or her property rights.

    Municipalities have a Constitutional obligation to make land available for alternative accommodation for people who are evicted.

    This has been confirmed in various court rulings, in particular the Blue Moonlight Properties 39 (Pty) Ltd v Occupiers of Saratoga Avenue and Another (2010) judgment, which ruled that this duty includes a responsibility to make emergency housing available in cases where people urgently require alternative accommodation.

    In terms of ESTA, a landowner must, under certain circumstances, prove that alternative accommodation is available.

    Seen from all angles
    It is easy to view the sensitive matter of eviction solely from the perspective of the landowner, or that of landless people who have no housing, or that of the municipality.

    And it is easy to become emotional and angry: landowners often suffer losses as a result of land invasions. People who stand to be evicted usually have no safety net and may face a life on the streets.

    Municipal officials already feel overwhelmed by the enormous demand for housing and services that have to be provided with limited budgets. This means that everyone has to work together to proactively seek solutions.

    Demand for housing near cities and towns is considerable and, since the rapid pace of urbanisation is unlikely to be reversed, we shall continue wrestling with such demand for years to come. Where conflict does arise, timely mediation is likely to be of great assistance in stabilising the situation and finding solutions.

    Unfortunately, it is not helpful when opportunists use the thorny issue of housing and evictions to lobby for a moratorium on evictions and EWC. Lawful evictions will always be necessary.

    Without this, frustrations will increase, resulting in conflict, hampering orderly housing development and stunting economic growth. But it is also vital to approach any eviction with great circumspection and empathy, and to proactively seek alternative accommodation for the people concerned. Municipalities have an important role to play in this regard.

    Occupation of land
    Until 1998, occupation of land without the landowner’s consent was a criminal offence. After that, the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act was passed, which scrapped the criminalisation of unlawful occupation, although certain actions, such as inciting people to occupy land unlawfully, remain criminal offences.

    It is now a criminal offence for a landowner to evict unlawful occupiers without a court order. The Trespass Act, however, still applies, which says it is a criminal offence to trespass on someone’s land without their permission.

    However, when trespassing becomes unlawful occupation, a court order is needed to remove such person or persons. Swift action is therefore crucial.

    Land invasion or illegal occupation occur when there is a degree of permanency, and where the person has already erected a structure with the intent to stay. When this happens, the person is not merely a trespasser, but an illegal occupier.

    Agri SA, with the help of attorneys, has compiled a comprehensive information document on the rights of landowners and the process that should be followed in such cases. It is available to all members, and has been cleared with the police.

    Shared responsibility
    The protection of property rights and the state’s obligations in terms of land reform and providing access to housing are two sides of the same coin.

    All parties concerned have rights, obligations and aspirations in this regard. This responsibility remains vested in the state, as has been confirmed in several judgments. The problem arises when a failing state does not act proactively to make land and housing available, and to act swiftly against unlawful land occupiers.

    The views expressed in our weekly opinion piece do not necessarily reflect those of Farmer’s Weekly.

    Email Annelize Crosby at annelize@agrisa.co.za.

    (Emphasis by SD Law*)

    * SD Law, is a law firm specialising in evictions. Our specialist eviction lawyers assist landlords and tenants with the legal eviction process. Contact us for help with the evicting a tenant from residential, commercial, or farm property. Our motto is to respect, recognise and ethically fulfil our responsibilities to both landlords and tenants in the high EQ resolution of the eviction equation. Fairness and equity always.

    Posted in Eviction news, Farm evictions | Tagged , , , , , , , , | Comments Off on Legal evictions: landowners need to know their rights

    Inner-city raids: criminal police conduct violates residents’ privacy and dignity

    Posted in Eviction news | Comments Off on Inner-city raids: criminal police conduct violates residents’ privacy and dignity

    Mangaung collects

    Sometimes occupants are treated unfairly by municipalities. But sometimes the municipality is in the right. In Mangaung, Bloemfontein, some residents owe significant monies to the municipality, causing it severe financial hardship, as this article from News 24 shows.

    eviction lawyers

    The cash-strapped Mangaung Metro Municipality is tracing historical debt dating back to the 1990s in its desperate financial recovery plan called Operation Patala, meaning pay up. The municipality is targeting residents in Bloemside, Bloemfontein.

    The embattled city council claims most of the occupants have never paid up the land costs. The municipality’s move to recoup monies will compel residents to produce proof that sites were or are paid up to avoid evictions and legal action.

    In a media statement issued on Friday (07/02), the municipality further threatens legal action against defaulters. Qondile Khedama, spokes­person, said the metro’s human settlement directorate would get tough against wilful defaulters in its desperate move to recoup huge monies to refill its empty coffers.

    “Some residents have built houses and others have sold sites to third parties. The department will identify them and start collecting monies,” said Khedama.

    “People who are occupying unpaid sites in Bloemside have always received communique from the municipality about their debt, but have failed to come forward.”

    The term of reference for unpaid sites is during the transitional period regarding the late Jani Mohapi (1994-2001), former mayor. He preceded Itumeleng Papie Mokoena, presently the leader of the Agency for New Agenda.

    Owing to an inability to render basic services and manage its finances, the municipality saw itself placed under administration. The Free State government appointed a team of five members to try rescue the Mangaung Metro from the doldrums.

    Ratings agency Moody’s downgraded the Mangaung Municipality’s long-term global scale to junk status on 28 January, adding to its woes. The council was first downgraded to junk status in August last year.

    While residents are blamed for the municipality’s financial crisis, the Free State government departments reportedly account for most debt.

    The departments’ debt to the municipality has reportedly increased from R3.18 million to R1.399 billion – an increase of 339%.

    In addition to the municipality’s bleak financial outlook, its own councillors collectively owed R506 400 by 30 June 2019, as is evident from the annual report tabled during a council meeting on 30 January.

    Khedama said the first phase of the campaign to recoup monies began in November last year, resulting in 112 accounts handed over to attorneys and defaulting tenants served with letters of demand.

    “The city’s attorneys will start with the eviction process and this will be dealt with on merit.

    “Unemployed tenants will be required to present proof and a plan will be made to accommodate them at alternative settlement sites owned by the city.”

    He said the city council focused on defaulting tenants who were renting at some of the city’s residential flats such as the Lourierpark Flats and other housing services.

    There have been issues with non-paying tenants at Lourierpark Flats over the years. All necessary steps to inform tenants have been undertaken.

    Khedama said the city would be targeting informal settlements where it is believed sites had been sold fraudulently to non-qualifying beneficiaries or non-South Africans.

    “Wherein the non-qualifying occupants have built a permanent structure, we make them offers to pay for land costs. Failure to pay will lead to eviction,” said Khedama.

    Reprinted from News 24 – 2020-02-12

    Contact Eviction Lawyers in Cape Town and Johannesburg for help with eviction

    *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. Contact one of our attorneys on 086 099 5146 or info@sdlaw.co.za if you need advice on the eviction process or want to know the cost of eviction.

    Further reading:

    Mangaung municipality goes after defaulting tenants

    100 illegal flat invaders evicted from buildings

    Joy as rightful owners of Mamelodi flats move in after waiting years for homes

    When and how you can evict a tenant

    Posted in Evictions | Tagged , , , , , , , | Comments Off on Mangaung collects

    Tacit hypothec – right of the landlord over property

    Eviction lawyers exists to protect all parties, not only tenants. Apartheid-era abuses and, more recently, slum landlords and hijacked buildings have given property owners a bad name, but everyone is entitled to the right to enjoy their property and to be protected from abuse, regardless which side of the lease contract they represent. This article examines the landlord’s tacit hypothec.

    The “Tacit hypothec”

    If a tenant falls into rent arrears, common law grants the landlord “tacit hypothec” over the tenant’s goods on the property. What does this mean in plain English? “Hypothec” is an old term, dating back to the 16th century and having its origins in French, which has survived in legal jargon and means “a right established by law over a debtor’s property that remains in the debtor’s possession”. Tacit means “implied” or “understood without being stated”.

    When might the landlord’s tacit hypothec apply?

    The provision for tacit hypothec is enshrined in Section 32 of the Magistrates’ Courts Act, because most rental claims are heard in the Magistrate’s Court, not the High Court. Section 32 allows a landlord to apply for the attachment and, in certain circumstances, for the removal of a tenant’s movable goods in the leased premises, in lieu of rent owed. A landlord may choose to invoke Section 32 because it can be more effective than a rent interdict summons. Understandably, tenants will not want to see their possessions impounded and may respond more swiftly to this threat than to an interdict for payment of arrears.

    How does the landlord’s tacit hypothec work?

    The landlord applies to the Magistrate’s Court for an attachment under Section 32 in securitatem debiti – in other words, to secure the debt. However, if there is reason to suspect the tenant might abscond with the goods, the landlord can request an immediate order. This allows for removal of goods as security for unpaid rent without giving notice, because such notice could result in the tenant removing things in advance, thus rendering the landlord’s tacit hypothec worthless.

    Can the tenant appeal?

    The short answer is no. Only final judgements can be appealed, and a Section 32 order is not considered a final judgement. It serves only to preserve the landlord’s security for rental, pending the finalisation in the subsequent action.

    Burden of proof for the tacit hypothec

    It is the landlord’s responsibility to prove grounds for a Section 32 order. If the application is opposed and a dispute arises, resolution is based on the balance of probabilities. If this fails, there must be substantial doubt regarding the landlord’s case for the attachment to be set aside. Therefore, the landlord’s right to enjoy the rental income from a property is protected, but that right may not be abused by invoking Section 32 without due cause. In this way common law seeks to treat all parties equitably.

    Still have queries about the landlord’s tacit hypothec?

    We’ve tried in this short article to explain the landlord’s tacit hypothec in terms landlords and tenants can understand. The law concerning Section 32 is more complex than we have room for here, and we would be happy to discuss your case with you in detail. Cape Town Attorneys SD Law & Associates are property and eviction lawyers in South Africa. We have an intimate knowledge of the legislation and can make sure your rights are protected, whether you’re a landowner or an occupier. If you are in rent arrears and think you may be subject to a Section 32 order, or if you’re a landlord with unpaid rent and you would like to take action, we can help. Contact Cape Town lawyer Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za.

    Posted in Evictions, Rent, Uncategorized | Tagged , , , , , , , | Comments Off on Tacit hypothec – right of the landlord over property

    Lease agreement – How to end it with Dignity

    How to end your lease agreement with dignity

    Lease agreements – Like any relationship, tenants and landlords may start off thinking the world of each other, but something as simple as a noise complaint or late payment can bring things to an end.

    Lease agreement, how to end it with dignity

    When either party breaches the lease contract it means that they have failed to perform any term of the contract without a legitimate legal excuse. For example, the landlord decides to sell the property before the lease expiry date. Or a tenant vacates the property without notice or payment.

    There are countless reasons why tenants or landlords may decide to end the lease agreement. While the reasons may differ, the course of action that follows should be dealt with sensitively to avoid lengthy legal procedures and costs.

    How to cancel a lease agreement:

    • Check the notice period. This should be outlined in your lease agreement.
    • Deliver the written notice and discuss why you need to cancel the agreement. If both parties are in agreement ensure that the notice is signed. Clearly indicate the date the property needs to be vacated by.
    • Do a property inspection together and distinguish between wear and tear and actual damages.
    • The deposit should then be returned to the tenant, minus the cost of damages agreed to. Proof of the repair costs is also recommended.
    • All keys should be returned to the landlord.

    In an ideal world every lease agreement would be canceled with both parties happy. Unfortunately, this is very rarely the case. In which case both parties should be aware of their rights.

    What steps to take when either party breaches the lease and the situation cannot be reconciled?

    Start by reading through and understanding the agreement both parties signed, with specific focus on the cancelation clause. Lease agreements come in all shapes and sizes and may vary, but the contract underlines your rights and will help you choose the right course of action.

    What a tenant can and cannot do:

    • A tenant may give a month’s notice or 20 business days. Should 20 business days’ notice be given the tenant may be liable for cancellation fees.
    • A tenant may continue living in the property until the lease expires as long as he/she has not breached the lease agreement. This includes change of ownership.
    • The tenant may not use the property for any other purpose than what is stipulated in the lease agreement. For example, run a business without consent from the landlord.
    • The tenant may not make changes to the property unless agreed with the landlord.
    • The tenant may not sublet the property without permission from the landlord. For example, renting out an additional bedroom to a third party.

    What a landlord can and cannot do:

    • A landlord may decide to evict a tenant, but can only do so if the correct eviction process has been followed and a court order is obtained.
    • A landlord in possession of an eviction order cannot remove tenants from a property. The court sheriff is responsible for doing this.
    • The landlord cannot refuse the tenant access to the property by changing the locks, for example.
    • The landlord may not enter the premises without permission and remove furniture as a form of payment.

    Whether you’re beginning, renewing or ending a lease agreement come December or January, we hope you feel more equipped to handle the process.

    Need help with your lease agreement?

    For tailored advice on how best to handle your process, we are here to assist you in every possible way.

    We are available to take your call 24/7 – +27 (0) 87 550 2740

    Contact us

    It is always best for the Landlord to take the correct legal procedure as early as possible to avoid delays and complications later on.

    Contact us now about evicting your illegal occupier. Learn more about Eviction Lawyer Simon Dippenaar.

    Posted in Lease Agreement | Tagged | Comments Off on Lease agreement – How to end it with Dignity