Landlords strangled by Covid-19 lockdown regulations on evictions

By Vivian Warby, Bonny Fourie Time of article published Mar 10, 2021

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Cape Town - Landlords are struggling at every turn.

And extended lockdown regulations that prevent them from being able to evict long-term non-paying tenants, is adding to their burden.

Now the DA is calling on the government to amend Regulation 73(2) that empowers a court to stay all eviction proceedings for the duration of the national state of disaster, which at present is an indefinite period.

Andrew Schaefer, managing director of property management group Trafalgar, says long delays in being able to action any eviction orders that were obtained has exacerbated the grave loss of rental income for many landlords over the past year.

“And the very slow pace at Courts and difficulties experienced in enrolling matters to seek eviction orders are an equally serious problem. We are really hoping to see the severe constraints with the legal process resolved soon.”

Landlords say the regulation has impacted negatively on their financial situation. Not only can they not get in new paying tenants, but they have to find extra resources to foot the levies, rates and taxes bills as well as bonds. Some landlords say they have had tenants who have not paid rent for a year, which has financially crippled them.

And Credit Bureau TPN backs this up in one of the surveys in which they found the percentage of residential tenants who have not paid rent for four consecutive months is at an all time high.

When lockdown hit South Africa a year ago, the government put an immediate ban on evictions, making life tough for property owners. This continues even at Level 1.

While eviction orders can be granted, they cannot be enforced unless in individually-assessed cases. The ban served to help tenants, who were not permitted movement in Levels 5 and 4, and who had been financially hard hit by Lockdown Level 5. Some tenants lost their jobs or had their salaries slashed.

The Democratic Alliance is calling for the regulation to be amended to allow for evictions, without all the caveats presently in place.

TPN says lockdown Level 1 allows the courts to delay granting the eviction until the end of the National State of Disaster. If the Court decides to grant the Eviction order prior to the end of the National State of Disaster, it must consider the health of all persons, the restriction of movement, the impact of the disaster on the parties, and the person's immediate access to alternative place of residence.

“These are all additional burdens on the landlord which are not the ordinary responsibility of the landlord,” says TPN managing director Michelle Dickens

Last year, attorney Ismail Vally, mediator to the Rental Housing Tribunal and director at Vally Chagan & Associates, said it was “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 noted that the lockdown does not constitute an automatic defence regarding non-payment of rental.

“Each matter will be considered on its merits.”

Vally added 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.”

Also last year, attorney Simon Dippenaar, founder and director of Simon Dippenaar & Associates which has offices in Cape Town and Johannesburg said some eviction orders had been granted during the higher lockdown levels, but only for cases that began before lockdown started.

“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,” he said at the time.

Now that the country is at Level 1, the DA is one of the voices calling for evictions to be permitted and is appealing to the Minister of Cooperative Governance & Traditional Affairs to amend lockdown regulations to allow for evictions “within reasonable and justifiable constitutional limits”. The party’s Celliers Brink says the ban needs to be urgently lifted to restore the rights of property owners.

“While restrictions on the movement of people have long ago been lifted, the corresponding rights of property owners have not been restored.”

He adds: “To protect their land and buildings against illegal occupation property owners have to overcome extraordinary legal hurdles, creating an open season for land grabs...Most concerning are the factors that a court has to consider in deciding whether or not to stay eviction proceedings. This includes the duty on parties applying for an eviction order to take reasonable steps to provide alternative accommodation for evicted persons in terms of Regulation 73(2)(i).”

By this “sleight of hand” Brink says the government has “effectively transferred its own constitutional duty to ordinary property owners without offering any additional support”.

In August, commercial law attorney Maria Davey, partner at Meumann White Attorneys in Durban said the firm had received many enquiries from residential landlords during lockdown. All of them were valid cases relating to tenants who had defaulted on their rental payments.

“The lockdown regulations are encouraging tenants to default knowing that they have the protection of the regulations. Some landlords rely on rentals for income and are getting into debt as a result of the tenants default. Furthermore, they cannot evict tenants in order to replace them with ones who will pay.”

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