The inability by the tenant’s to afford the cost of rent is on the increase as the lockdown period continues and the majority of the working population being unable to return to work. Questions relating to lapsed leases, non-payment/partial payment of rent and evictions of tenants have consequently become more prevalent. The rights and obligations of the landlord and tenant must, therefore, be weighed against the Level 4 Regulations which will be addressed in the queries received below.
My tenant has failed to pay his/her rent. Can I evict him/her?
Before COVID-19, the answer would have been relatively simple. If a tenant fails to pay the rent, the landlord could rely on the provisions of the lease agreement in order to initiate the eviction process.
The level 4 Regulations have now been relaxed allowing for the parties to relocate on the expiration of a lease agreement, however, it remains silent regarding tenants who are in arrears with their rent. The tenant can, however, be requested to vacate the property if he refuses, however, the landlord will be required to obtain a court order.
Can I institute eviction proceedings against a defaulting tenant during this period?
Yes, you may. It is, however, important to note that should the court grant the order of eviction, the order will be suspended until the last day of Level 4 unless the court decides that it is not just and equitable to do so.
I’ve entered into a lease agreement prior to the lockdown. Will I now be able to take occupation?
Yes, you will.
In terms of new Regulations published, legislation now allows for the movement of persons and goods permitting parties who have entered into new lease agreements, before or during the lockdown, to transport their goods to their new place of residence. This right to move residence is, however, a once-off move, within the Republic of South Africa, and is only permitted from 7 May 2020 until 7 June 2020.
Persons moving “across provincial, metropolitan and district boundaries”, must obtain and keep in their possession during the move:
- a permit from a local police station; and
- signed lease agreements which indicate the expiry of the old lease and the commencement date of the new lease agreement.
My tenant vacated the property during lockdown?
Should the tenant vacate the property on his own accord prior to the expiration of the lease agreement, the tenant remains liable for all sums due and payable as per the terms of the said agreement.
However, by vacating the property, the tenant may be in violation of the Regulations if he is not in possession of the aforementioned permit and lease agreements required. If found guilty, he can face a fine or imprisonment for a period not exceeding 6 months or both.
ABOUT THE AUTHOR
Mariam Allie graduated with a BA(Law) LLB from the University of the Western Cape. She is a registered Attorney, Notary and Conveyancer and currently practices as a legal advisor in the SEESA Consumer Protection & POPI legal department at the Cape Town office.