 Good evening and welcome to the Private Property Podcast. I'm your host, Zaman Dunga Kumalewa today on episode 15 of the podcast and day 35 of the National Lockdown. And of course today is the last day of level five and tomorrow will be level four lockdown. We might come back to level five, who knows? But today we'll be unpacking what level four actually means. So the good, the bad and the ugly for agents, tenants and landlords for level four lockdown and helping us unpack what level four means for the property and different people in the property space. I'm joined this evening again by Silne Stain, who's the managing director of SSLR Incorporated. Good evening, Silne. Thank you so much for joining us this evening. Hi, Zaman Dunga. Thank you so much for having me again. And especially on the last day of lockdown level five, remember a week ago we just thought there was like lockdown and not lockdown? We love it so much. Not so much. And of course we've seen that there are implications to the different levels. We saw that the new regulations around what level four means have now been announced. And I think I'd like us to first look at the first contentious one, which is of course around the movement of people. What does level four actually mean for our ability to move or people's ability to move around? Yes, I think that was the question on everybody's lips. And I think the publication from government with the proposed suggestions around the levels caused great confusion, but it was necessary so people can give the input and clearly it had a huge impact. I'm not a smoker, so I'm going to use the smoking as an example. But everybody was very excited when the president said, okay, people can smoke. And the reason why that was changed in level four was because of public submissions. So there were about 2,000 more than 2,000 submissions that said no, no, no, please. We should keep smoking out. And why I'm saying this is I think people had a bit of an impression that the levels as it was published, that would be the regulations. And I knew that it wouldn't be, which is why I didn't say anything about the proposed levels other than let's wait for regulations. This was the exact reason. And it's very interesting under the regulations, what we are seeing now is very clear. I know there's still a lot of let's call it confusion, but I don't think it's confusion. It's just things still need to crystallize. And we'll talk about that in more detail. But the line in the short of level four is nobody should be moving. Everybody please sit side. Level four does make provision for some movement, a once off movement. I don't know if you want to unpack it one, one type of movement at a time. Yeah, I think that's actually unpack it for a little bit because I know these provisions for coming for returning. So if you're, for example, out of the province, and some people are asking questions, and these are even some of the questions from people at home. If you're able to, for example, move house or move into a new apartment or change. So I think let's unpack the different ways that the provision or rather the different ways that we are able to move according to the provisions. Yes. So the first very real thing that everybody has to appreciate is personal movement is not allowed. There are exceptions to the rule. The rule is nobody is moving. Everybody is staying home. So exceptions is obviously now just personal movement. You're allowed to go to the shop to go buy essential things. Now there's a little bit of expansion on that. You're allowed to go to work. If you're an essential worker, there's some expansion on that right now. These kind of things the rest of the time stay home and do not go out of your house. That's the standard rule. And the reason why this is the standard rule, guys, let's please appreciate the fact that government has to do their very best to try and keep not just the people, but the economy as safe as possible. And now I do appreciate that I'll probably get a few unlocks on my Facebook page for this one. But I think it's important to appreciate, guys. It's the virus that is causing this. It's COVID-19 that's causing the harm to our economy. Government is doing their very best to try and keep everything afloat as much as we can while we are battling this. Such a weird thing because it can be compared to war. And I do definitely when I talk to my team in SSLR always say, guys, remember it's war. Nobody in a war would tell you, oh, I wish I can go out and, you know, go get my haircut. No, you're gonna die because it's war. We're currently with the virus. It's important to appreciate. We can't see it. So it's weird. And we're all like, yeah, what is this? We need to stay home. So the exceptions on the actual physical movement in accommodation. Once again, you're not allowed to move. Exceptions is there is a once off window now to return to your residence. Guys, it's important to appreciate the word return here. The regulation specifically says return. Now return. That's a pretentious one, right? Because I think a lot of people and it's potentially up for abuse means on the one hand, there are people when we started lockdown who were in different parts of the country or different parts of town. And you thought, you know what, I could be in lockdown for 21 days in this particular household. That's fine. And then we had, you know, the two week extension. And now we've got level four, which actually doesn't mean that it's the end of the lockdown. So you didn't make provision to be in a particular household for such an extended period of time. But in the same breath, it's very easy for people to think, well, if there are some people who are moving, i.e. returning, perhaps this is my opportunity to then move house completely. So I'm not necessarily returning somewhere. I'm not going to, especially because tomorrow is now the first of May. So I might just think, let me just go move into that new residence that I was actually supposed to move into on the 1st of April. So now could probably be that great opportunity to use this period to actually move that. Are we allowed to do that? No, not at all. The word return is very important, guys. That means there was a pre-existing that was your residence. If it said move to, cool, then we can move. Return means if you live in Joburg and you went to the family in Limpopo, because you thought, ah, it's going to be better with people for 21 days, now you have to return to Joburg for work. You're allowed to do that once or move, but return. There are definitely a bit of a broader allowance to move return, not just for essential workers, but there is reference to learners that would be allowed to potentially move to wherever they need to be to continue with these studies. So that is allowed, guys, but it's the once or thing. We're not going to move now to Joburg to do your work and then every weekend return. That's not going to happen. It's a once or smooth and then you are back stuck in the property that you are returning to. So there are a few people that are trying to use this and the funny question that I'm getting is, can I take a chance, guys, in normal life, we can take chances and then when you get caught, you're like, oh, sorry. And a bit of a slap on the wrist and it stands is we're talking six months jail sentence. If you are now taking a chance and you get caught. I don't know, but I know we're too pretty for jail system. But I'm not built for that. I'm a goody two shoes and I could never actually do something like that. And as you're saying, this is actually one of those questions that even our viewers at home have been asking. We've got one from Lina Harport with us. Can we move from one house to another house in the same town? And Linda Al is saying, is it possible to move out? Been residing at a friend's house since March and it seems like moving out won't be allowed. So that's quite a common question around, you know, whether we can move to new residents. And I suppose in this instance, wouldn't be returning to where it was that we were in, but actually moving into a new place altogether. So essentially, that's completely out of the question. Yes, 100% out of the question. The other question now if if you moved in with a family member or friend and you thought it was just for the lockdown period and your stuff, your house with the glass bowl with the chip in it is at another place, definitely you can return to your house, but you can't move out. And if you've been staying with a friend and because all your stuff is there, you can't take your items and move couches. And seriously, I'm talking about the bowls with the chips. That's what I mean with that is how you know it's your house. Those items that you wonder if you're going to get rid of it ever and you won't. And when you have to start packing those in boxes, that's moving and that is not allowed. And that's surprisingly a similar question. And I can understand this. So you're a landlord and perhaps you've got a vacant property or a few vacant properties. This question is coming in from Montolundi Zungu who asks, my apartment is empty. Can I have a tenant occupy you during that one day once off move? There would be an exception. So now I'm talking to the landlord's entertainments for that matter. If you are an essential service worker and you have to relocate for work purposes, you will be allowed to obtain a permit from a magistrate. Guys, this is important. The police, the station commander in every police station only has the authority to issue permits for people to move for funeral purposes. If it's not a funeral, the police can't give you the permit. If they do, it's an affidavit. Remember, the police can't commission any affidavit. So can I, I'm a commissioner of that doesn't make it a permit, the fact that it's an affidavit. With that affidavit, you can approach a magistrate and the magistrate can grant a permit to move. But this is in extraordinary circumstances, a magistrate will not grant such a permit because it's essentially a type of a court order just because you want to move into another place that will not be allowed to only extraordinary circumstances, which will definitely be centered around things like health purposes or for essential work purposes. So now actually I want us to stay a little bit longer on this movement question. And I know your answer is probably going to stay the same, but I want to almost give different scenarios because I've been seeing a few of them. I've had people also approaching me asking me certain questions and there's still a little bit of uncertainty. And you've mentioned this issue of going to the police station, making an affidavit. I was seeing reports of people making that affidavit because they want to move. And this was already in right now in level five and saying that essentially that affidavit is their permit to move into a new residence. And now we're going to moving into level four where people might think that perhaps restrictions have eased up slightly. So again, they can just go to the police station and make an affidavit. So essentially what you're saying is that affidavit is not the permit that one needs to move because some people are thinking I can still actually move house. I just need to go to the police station and in the event where I had this affidavit and some of them are even calling that affidavit a permit. So in the event where I have this piece of paper that the police has essentially stamped, then it means that I can move my things and go into a new apartment or a new house. So are you saying that that is something that we actually cannot do? Yes, 100%. Remember guys, an affidavit is a simple, it's a document where you record something and a commission of, oh, wow, my words are finished for the day. The commission of oath certifies that you took an oath to say that what you said in that document is the truth. Now, I have seen as affidavit, so much we were from people that says I am transferring my property to you. So you and me say, do you want this property? Yes, cool. We go to the police station, we make an affidavit to say I am giving my property to you. They will even write on the top of that affidavit title deed. Okay, the fact that we call something something and the fact that the police then stamps it in their capacity as a commission of oath doesn't change the fact that that's simply a piece of paper recording something that you believe to be the truth. So unfortunately guys, that is not a permit. A permit is something that will give you a right to act in a certain way within the limits of the regulations. No permit allowing you to do something that is not allowed in terms of the regulations will be legal as either. So even if you are, for instance, the managing director of your organization, the fact that you can give permits for people to do things, those things that they can do may only be in terms of the regulations. So somebody that's allowed to issue permits, like I'm allowed to issue permits for my entire team because we are level four workers. I can issue a permit for my one attorney that has to return from Port of Strum. I can issue the permit to cross from one province to another. I can't issue a permit for my one secretary that wants to move from one house to another this weekend. That guard's not going to fly. And again, we've got another slightly technical question around this movement. This one is coming from Juan D'Sancos who asks, how will the return trip be monitored? Is there a window, is there a moving window period? No, no moving window period. However, the eastest one source move that is allowed is not within a specific period. However, the minister last night not during her speech, but the Q&A afterwards, definitely alluded to sort of get your moves done over this long weekend. If you have to move any time they offered that regulations doesn't say the one source move is happening in a specific time period. But the minister definitely alluded to that. And I would suggest get your moving out of the way as quickly as possible. But it's not a window for any type of moving. It's still just for returning to your place of residence. And of course, there's another issue that comes into effect as far as level four is concerned. And we've already got a question around it is around regulation 19, which is evictions. And we've got a question here from Tsutugazi who asks, I'd like to know, since a landlord can have an eviction notice ready, when can it be served? Does it mean that in June you give a notice to the tenant or you can serve it by the 31st of May? Okay, so now we're going to have to start on the term eviction notice because guys, he has a very important lesson for always. This is not a lockdown thing. This is not a national state of disaster. A person cannot give an eviction notice to another person. The only body that can grant an eviction order is a court. So we can cancel a lease agreement. That is called a letter of cancellation. That letter can contain something that says, because I've cancelled my lease agreement with you, you are to vacate the property immediately. If somebody's been staying with you on a sort of informal arrangement and you're tired of them, you can give them a letter to say, listen, it's been real. We had a verbal agreement for you to stay here, but I'm a little over it. I am canceling the right that you had to live here. That is not an eviction notice. Once again, even if you call it an eviction notice on top of the letter, doesn't make it an eviction notice. So I had to start there with the answer. We can commence with eviction proceedings now. I'm obviously very excited about that being an eviction specialist and a firm that pretty much does mostly evictions. For us to have a moratorium on evictions was a little scary, but we're very happy that we can obtain the orders now. So we can institute eviction proceedings now already. We can even obtain the eviction orders. The eviction orders, however, the execution of those orders with regards to residential property is being stayed. So what that process will look like is you're going to send your tenant a normal letter of demand, giving them the 20 business days in terms of the Consumer Protection Act to remedy their bridge. If they don't, you're going to cancel. On cancellation, you have to instruct an attorney to obtain these eviction orders. The regulation is very clear. Only orders in terms of ESTA and by the extension of Security of Tenure Act and the Prevention of Illegal Evictions from and Unlawful Occupation of Land Act. Only those eviction orders can be obtained at this stage. I'll return to commercial evictions just now, but those evictions can be obtained now. The orders will be obtained, but we hold off on execution and the court order will read something like the respondent will have to vacate these premises as soon as the lockdown regulations allow for them to vacate. If that person then doesn't vacate, then we can send the sheriff to effect the actual eviction. So the eviction noticed that she was referring to, I am afraid, is simply a cancellation letter. But she can instruct an attorney now to commence with the eviction proceeding. We can even obtain the order for you. If they don't vacate, we can then have to sheriff evict them. However, we are definitely allowed to obtain commercial eviction orders now and we are also allowed to execute them already. So it's only the stay on eviction execution is only on residential evictions and not on commercial evictions. In commercial evictions, we will be able to execute provided that the sheriff has capacity and is willing to to attend to the executions during lockdown level four. And then of course, Sona, there's the last issue of the deeds office. I mean, a lot of people were celebrating that the deeds office is going to be open. What are the implications of the deeds office opening and the operation that they'd essentially be able to carry out? That's also a very interesting thing. We're getting to learn so much about about the way people perceive things in this time. So remember guys, the deeds office isn't only there for registration of property, also there for endorsements on title deeds, for registration of anti-natural contracts, things like that. So the functioning of the deeds office isn't exclusively for transfer. So as much as the deeds office is functioning, we can't transfer property without a rates clearance certificate. Now, when it comes to rates clearance certificates on the level four, municipal services are allowed. Now what is essential municipal services? We do not know at this very second. That's one of the things that will crystallize over the next few days. So if the municipalities say, okay cool, we do feel that rates clearance is an essential service or it's something that the municipalities can do without exposing their people and obviously other people to a risk of the virus, then yes, 100%, they can issue rates clearance and we can transfer property like we did in February. Remember good times. But if they don't and if we can't get rates clearance, we won't be able to transfer. At the same time, unfortunately, estate agents aren't allowed to function and aren't allowed to trade in level four, which will make it a little tricky to transfer properties. But when it comes to transfer, I would say, be calm. I don't think all is lost yet for estate agents. I do believe that in the next few days, we will get some clarity from the municipalities on rates clearance. If that can happen, we can transfer properties. Estate agents will have to be very creative thing on how you're going to do your viewings, how you're going to conclude your agreements. But there will be a few matters that we'll be able to go through like that, provided obviously that we can get rates clearance. But other than that, the reason for the needs office is unfortunately wider than just transfer property. So I think we're going to have to give it some time, maybe just a few days to see exactly what the intention is from government when it comes to transfer properties. There are more questions coming in from our viewers at home. So now if you've got any questions, I'm on the line or rather speaking to Silnes Day, who's the managing director of SSLR. And we're looking at tomorrow, we'll be having level four lockdown. We're looking at the good, the bad and the ugly for tenants, landlords as well as agents and really trying to make sense of what level four means, particularly for people in properties. So whether you're living in a particular property, whether you're a landlord and you've got different properties that you're managing, or an estate agent and trying to understand what you can or cannot do during this period. This is exactly what we're discussing this evening. So you're more than welcome to send through your questions and we'll address them. Now, another question coming in is a rather interesting one. It's coming from Dural Jafter who asked, I just received an OTP, any advice for me? What should I look out for? Since I'm not able to view the property, and since I'm not able to view the property, what should I and what should I ask the agent to make me more satisfied for the sale? We're having a virtual meeting tomorrow. Any advice is welcome. Oh, wow. That's a beautiful question. I love it. And you know what the truth is, depending on the reason for the purchase. So if your intention is to buy the property to flip, you know, if there's a huge disaster somewhere in one of the walls, but your intention is anyway to do a quick renovation and flip the property, I wouldn't be overly concerned if it is a property that you want to move into. I must say a very thorough virtual inspection so the seller must walk through with his phone on a video call showing you every single corner. The only thing is, when it comes to things like, is there any leaking taps? Is there any leaking pipes? What I will suggest is potentially for you as the purchaser to do away then with the footsteps laws. So specifically say, let's remove that clause. Let's say you, Mr. Seller, are so convinced that you will disclose every single defect in this property to me that I am willing to not sell this property footsteps. That is my best advice for that particular situation. Because I would be not just reluctant, I think it would be very risky, very risky to buy a property footsteps that you haven't inspected personally. Because to say everything is working on a virtual inspection, a virtual inspection is one of those things where even if they open the cupboard doors for you to see the piping in the property, unless you can touch the cupboard and feel if there's any damp or anything in that cupboard, you're not going to know what you are buying. So definitely get rid of the footsteps laws and make sure the parties agree to that. Remember, in an agreement, you can do a lot of things. You can even make this sale subject to a positive inspection after the lockdown is finished. So you sign the OTP, everybody is happy, but do a suspension of condition. I've done that for one of my clients recently. It's not a very complicated clause, but I suggest that's not a DIY clause. You're welcome to contact your attorneys if they ask why you are talking to a crazy attorney on a Thursday evening over a webinar. Be more than welcome to pop me a mail I'll obviously help you with advice like that. It's very important to get the right clause in. With the right clauses, you can basically get around all these weird and wonderful things that's coming up at this stage. So remove the footsteps laws, make it subject to an actual physical inspection. If there's anything that sits unwell when you do the virtual inspection and you feel a little reluctant, there's not a lot of people right now that that is necessarily looking into buying properties over virtual inspections. Ask the landlord if you can hold off, ask the owner if you can hold off until the end of level four to be able to inspect the property. But if you are comfortable with that, that's two provisions that I'm thinking of in an OTP to protect you. I think that's actually something that I wanted to ask you around the suspense across that you could potentially include. Of course, one of the we are saying is after a positive inspection, I expect in companies right now able to go and inspect. So suppose you can't physically of course go to view the property. Are the companies who do inspections, are they considered an essential service? So perhaps you might not want to physically, you might be satisfied with the virtual walkabout, but then you still want the company that you're going to appoint to do the inspection, would they be allowed to then go inspect the company for you under level four, I mean the property for you? Unless there's something very weird with a particular inspection company that does have a permit to function in level four, I can't see anything from the service providers in level four that will allow an inspection company. If they were allowed, that would have made it easier for rental agents as well at this stage with inspections where a tenant isn't allowed to move, but he decides to disregard the law move, we can't do those exit inspections. So that would have resolved the problem. I even had the question today, maintenance guys are level four functioning people, some of them majority actually, are they allowed to do the inspection because they are allowed to be at the premises? Guys, let's not, you know, let the law essentially, and let the right people do the right things, I mean, let's not have attorneys do open-heart surgery. So maintenance people are amazing, but they don't do inspections for a living if that makes sense. Yeah, so let's actually go back to the issue that you've just raised, a tenant who sort of goes against what the law currently sees and decides to move out. And this could easily, for example, be a tenant who was already in a raise, because I don't see a tenant who's been, you know, a good tenant paying regularly, suddenly deciding, I'm going to just ditch this and move and not pay this month's rental. So let's assume that the person moves out all the, and they somehow managed to move all their things and move to wherever they're going to be going to. How do we then mitigate that, right? So suppose they, they're already for this month, so in April, so they already hadn't paid the month, the rental for April. So theoretically, one could argue they've eaten into whatever deposit that they had for this particular month. And you, as a landlord, were probably expecting that at the very least they would try to cover this month's rental. Perhaps you may have already communicated with them about the missed rent. And now you're looking at May, and they actually text you, well, Monday or Tuesday, you get the text, well, I moved out over the weekend, you can find the key at security. What are the legal ways that landlords can then sort of mitigate that particular situation? Because the, what can they do firstly with the deposit? Because they still essentially have the deposit with them. What can or can't they do with the deposit given that the rental would have been missed for this month, and essentially will is going to be missed for the following month. And the lease agreement is still in effect. So suppose it's only ending September, October, any other month, what can they legally do given that scenario? Okay, so there's multiple questions in that scenario. So first off, if you have a deposit and the tenant absconds, but you have outstanding rent, the landlord can then take the deposit to the value of the outstanding rent. Yes, we're hoping it's, he's got a bigger deposit than outstanding rent. And he is allowed to do that. In terms of the rental housing act, the act of absconding is deemed to be termination of the lease agreement. So why this is relevant is, on that deemed termination when the tenant absconds, the landlord is entitled to then apportion the deposit and utilize the deposit money. If the deposit is not enough, or if the deposit was already used during March, April, unfortunately, you can institute proceedings more than welcome to collect the money. I must say there is a very big chance obviously of that judgment being a pretty empty judgment because the tenant that's already owed you that much money, that absconds, I can promise you, you're going to be one of the creditors in line against that tenant. In law, you have it loaned, in law, you will get a judgment. Unfortunately, we don't have an ATM somewhere where you stick your judgment in and the money comes out, but you will be successful. Imagine, we should do that. Only Sars has an ATM like that. It's called your own bank account. Anyway, so that's the one scenario. The tenant that vacates now that's not allowed to leave the keys with the security. Very important here, guys. Once again, rental housing at the insist that agreement is terminated. So it's cool, yes, the deposit, but is that illegal handover of possession to give it to the security guard didn't arrange with you? Yes, definitely. In terms of delivery, a dead-handed possession back to you. However, the risk of damage to the property, the type of damage to the property that the landlord will anyway be responsible for, whose insurance will be gathered by that, for instance, the geezer that bursts in the meantime while the premises is standing open, that is still the landlord's risk. However, if the security guard then thinks it's going to be so much more convenient to live in the complex instead of commuting back and forth, taking occupation, the tenant that recklessly handed over possession of a premises to a third party, that tenant will then be liable for the damages the landlord suffers because of the security guard that's now living in the property. And I think that's probably a great place to leave it. I think are there any other provisions that you'd like our viewers at home to be aware of given level three, whether they're a tenant or an estate agent or a landlord? You know what, I think the most important thing is to appreciate that the rules are actually quite simple. The rules are saying let's stay inside, let's stay indoors with a few exceptions. If we stick to the rules, we should be fine. If we don't, we are at risk of six months imprisonment. So it's not like I don't feel like staying in. I mean, the rules are pretty serious, but the repercussions of not sticking to the rules is really, really serious. And I think it's very important to appreciate that if we understand that if we don't try to bend the rules or don't try to argue, so I've been having too bad of arguments the whole day today. And I'm like, I'm not the one that made the rules. I'm just the one that explains what it is. And if we appreciate what we hear and what we read and take it as that is unfortunately what our lives are like right now because of COVID-19, then it's actually pretty easy to understand what the rules are saying. So I know I'm saying things that's driving everybody crazy because we don't want to hear we're not allowed to move. But unfortunately, that is the reality that we are currently in. Thank you so much for joining us this evening. So I'm sure it's been quite insightful for many of your viewers at home. And a lot of us, you know, have so many questions around these new regulations. And hopefully by the time we get to level three, and many of us are hoping that that's going to be soon. So if we all sort of stay at home and keep up with what level four is going to be, then we'll hopefully in the very near future make it to level three. And we'll also unpack what level three actually means. And of course, we'll wait for government to update us on what is possible and not possible during level three. So thank you very much for joining us this evening so now. And that is Sunstein who's the managing director of SSLR. And we've been unpacking what the implications of the level four lockdown are for tenants, agents, as well as landlords. And of course, that's kicking off tomorrow. So we do hope that you're going to be staying at home and staying safe. And if you have any properties to view, you can always go to www.privateproperty.co.za. And some of the properties actually have a virtual tour. So you may not be able to physically go to those apartments, but you can certainly start having viewing the virtual tours. We also have virtual tours available right here on our Facebook page just to give you a sense of some of the properties that you might want to shortlist for as soon as we're able to go out there. So that's www.privateproperty.co.za. Thank you very much for joining us this evening. I've been your host, Zaman Dunwo Kumalo, until Monday tomorrow is a public holiday. We don't even feel these public holidays because we're stuck at home, but tomorrow is a public holiday. So we'll be back again on Monday evening right here at 7 p.m. Stay home and stay safe. Good evening.