 Good day everybody, I am very excited to share this session with you, talking about evictions, how to get to the point of eviction and when we are finally there, how does an eviction work, what does this look like? I am Silne Steyn, I am the Managing Director of SSLO Incorporated, but today I'm not coming to you just from SSLO, I'm very excited to tell you guys about the Property Law Alliance. The reason for the Property Law Alliance was during lockdown, we realised that two heads are better than one, but three is even better. So SSLO has joined forces with Bruno Samoa-Tunis as well as Femark, Marshall and Welby Loved, which are three specialist eviction firms joining forces to get to the actual answers to the benefit of the property industry, because what we've realised is, as we know as lawyers, we tend to differ a little in opinion and by a little I mean a lot in opinion, and if we share our experience in our firms and if we share our experience and practical application of what we do with each other, we bring something much better to the industry. And in fairness, this is what attorneys are supposed to do, I do believe that it is our ethical obligation to get the absolute best answers to the industry, to the benefit of justice, and it's obviously in the interest of justice and I'm very proud to always share a stage with the other guys with Bruno and Greg specifically, unfortunately Bruno is with me in the studio, but he couldn't join me in the conversation because, and now Bruno you're going to have to forgive me for this one, he injured himself a little in the gym this morning, so he runs out of breath every now and again, which is very entertaining except he can't argue with me then. So I'm sorry that Bruno couldn't join us, but thank you for being here Bruno, you guys are always more than welcome to also have a look at the Property Law Alliance Facebook page as well as all our recordings that we've done for the Wednesday webinars every Wednesday evening at six, we do a live webinar which is very topical and questions answered to some of the viewers of our page, welcome to have a look at that and then you will definitely see Bruno as well, but the goodness is he is actually at a stand as well, which he will be definitely present right now, so if you visit his stand Bruno Samoa Ternis, you are more than welcome to talk to him, I'm quite sure by Saturday, since this is a pre-recording Bruno's voice will be right back in action, so you are more than welcome to visit him at his stand. I will be at my stand as well, SSLO Incorporated and you are welcome to have a conversation with us and we are actually inviting you to get a second opinion every single time you talk to one of us, the other one will be there, unfortunately I have to disappoint you to say that most of the time, I think we've been doing evictions for way too long, we tend to have pretty much the same answers, but luckily we keep each other on our toes, so you are more than welcome to visit us, but enough about that, let's get into evictions. An eviction is one of the scariest things that a landlord will ever have to go through. The reason for this is not really that an eviction is that scary, the truth is I don't think an eviction scares me and I'm quite sure evictions don't scare any other eviction specialist attorney, but for a landlord this is such a foreign concept, the basic idea of somebody is in my property illegally so, so he didn't pay rent and I had to cancel the lease agreement and this is why he's an illegal occupant or I bought a premises and was pretty surprised to find there's a bunch of people living on the premises illegally, whatever the circumstances is, if there is a person on your property illegally, it's so counterintuitive that the landlord is the party responsible for paying the legal costs to obtain an eviction order, so I always explain this at the hand of a divorce because the question I always get or the comment at least from landlords is it's so unfair, the law favours the tenant, the law favours the illegal occupant, now the truth is I do appreciate that it might feel like that, but that's not factually correct, factually the landlord has such a strong right, the right of ownership is a real right protected by section 26 of the constitution, but right next to section 25 is section 26 which deals with the right of occupation, the right of occupation is a personal right, it's a much weaker right than the right of ownership and the constitution itself in section 25 and section 26 already brings a bit of a balance between these rights because if the right of occupation isn't supported or strengthened by any legislation, the right that the owner has is so incredibly strong in comparison to the right of occupation that it could easily happen that a tenant ends up in a situation being bullied or being unfairly evicted from premises without judicial oversight, now the truth is why I'm using the example of a divorce is the fact that you have to obtain a court order to get divorced doesn't mean you don't have the right to get divorced and people are quite comfortable with divorces that you have to go through court but for some reason the fact that the same rules apply to evictions scare people and they say but I don't have the right to evict someone you do but you need to obtain a court order so I'm jumping the gun a little and I'm gonna go back to bridge and cancellation and why I'm doing that is we can always commence eviction proceedings as soon as the occupant is in illegal occupation so say for instance you buy a property and there are random people there that doesn't have a right to be there they are already in illegal occupation and you can commence eviction proceedings well most of the time you can commence your eviction proceedings immediately but when it comes to a non-paying tenant the feeling is always my tenant didn't pay rent I can evict him unfortunately it's not that simple in terms of our law of contract you need to place a tenant on terms first so place him in Mura this means you send him a notice to say you are in breach of your lease agreement you have a certain time period to remedy your breach if you do not do that we will cancel the agreement and that will mean that you are in illegal occupation and if you do not vacate we will evict you your lease agreement will tell you what the time period is that you need to give a person to vacate the to remedy his bridge if the lease agreement is silent on that one of two pieces of legislation can be relevant if the lease agreement is governed by section 14 of the consumer protection act then you need to give the person 20 business days to remedy his bridge only if he doesn't remedy his bridge would you be allowed to cancel that agreement remedy means a full remedy so say for instance the bridge is non-payment of rental which it normally is and the tenant pays a portion of the outstanding amount that's not full remedy and we can still cancel the lease agreement on day 21 and commence eviction proceedings if section 14 of the CPA does not apply to the lease agreement and it's a residential lease agreement which is silent on the time period that you need to give the tenant to remedy his bridge the rental housing act will kick in and the rental housing act then requires the landlord to give the tenant seven days seven calendar days to remedy his bridge and if he doesn't you can cancel the agreement otherwise you will be guided by the terms of your lease agreement something very important is to know whether section 14 of the CPA applies to your lease agreement or not so the good news is i don't have to bore you with that on this particular recording because you are welcome to visit the SSLR and TPN joint stand i have a downloadable PDF for you with a flowchart which will guide you in the right direction whether the CPA applies to your lease agreement or not but in short if the lease agreement is for a fixed period you're already at risk for section 14 of the CPA applying and if either one of the parties landlord or tenant is a natural person then section 14 of the CPA will apply to that lease agreement the provisions of legislation will always override your lease agreement regardless of the content of your lease agreement once you get to that point of cancellation you need to send a separate notice canceling the lease agreement and at that point the tenant is in illegal occupation of the premises so what do we do then we get to cancellation now what now can we go take the doors off or you know move somebody else in no you cannot that is spoliation spoliation is something where a person is deprived of possession the possession that the person was in does not have to be legal possession so the fact that the tenant is in illegal occupation so in illegal possession doesn't change the application of the Monument Fund Spoli the Monument Fund Spoli you can clearly use the Dutch law term directly incorporated into the South African legal system which says that if you've been illegally deprived of possession you can approach a court and your possession must be restored okay so legal jargon aside easy answer is if you lock the tenant out you disconnect these electricity supply you take the front door off to do maintenance we all know that's not really a thing guys if you do any of those things the tenant can approach any court or even the rental housing tribunal in still in the state of disaster they can even apply in terms of the lockdown regulations approach the rental housing tribunal on an urgent basis which is usually not something that the that a tenant is allowed to do so be very careful when they approach a court or the tribunal and they say that they've been locked out electricity was disconnected you will be ordered to restore the possession so it's not just a legal implication that you're going to have to pay for legal costs and things like that it's also pretty embarrassing imagine you lock someone out and you have to return after two days with a set of new keys so let's rather stay away from that and do things legally and properly when you get to that i am quite sure there's a few people that can do their own evictions but the truth is i've been training attorneys to do evictions for a good 10 years and this is definitely something that takes quite some time for an attorney to get comfortable with so as somebody that doesn't really understand the law i would not even attempt to do an eviction without the guidance of a specialist eviction attorney the reason for this is an eviction is extremely simple if you know how to do it if you've done a few of these you might still struggle but if you do only evictions i can promise you it's something we can basically do in our sleep but you need to get to the right attorney what we do then is we bring an application to a court which court you approach will depend on which court will be the quickest court and how do you know that well if you do enough evictions you know which courts will be quicker so when you go to the high court or the magistrates court doesn't really matter you're allowed to go to either one of the two courts it will depend on what will be the quickest court to obtain your eviction order the reason why it differs from court to court is your high courts very often run a process that might take a little bit longer than some of the magistrate courts however it depends from court to court and it differs dramatically between provinces and even in specific courts even for instance to an iceberg with multiple magistrates courts it differs from court to court so it will depend on which court will be the quickest court to approach you do the eviction on application which means that you want to make sure that there is nothing left outside of the lease agreement so you can do this on application application means all the facts in the matter gets brought to court on an affidavit so the moment you need to prove something by way of oral evidence you run the risk of having to go on trial and why is this bad because a trial date all the trial rolls across the courts in the country are much more congested and it's a much longer process than an application process so we bring an application we comply with the provisions of the prevention of illegal evictions act and we in doing so show the court that the owner is in fact the owner of the property that the occupant is in illegal occupation of the property and that we have complied with the provisions of the prevention of illegal evictions act in giving the correct notice in the correct time period explaining to the court what the personal circumstances of the illegal occupants are to allow the court to make a decision that would be just and equitable to evict the illegal occupant within a specific time period if the occupant does not vacate in that time period we can send the sheriff to help them move and this is something very important to be aware of especially now we're currently in lockdown level one but we've been able to do evictions all the way from lockdown level four already the is a perception out there that we have a prohibition on evictions during the state of disaster this is factually not correct the lockdown regulation says that a court may stay execution of the eviction order until the end of the state of disaster if you go to an attorney that knows exactly how to approach the court and ask the court to allow you to execute even during lockdown level one or any one of the potential lockdown levels we do we've done that successfully all three of the firms that's part of the property law alliance we've executed on quite a few eviction orders that we've obtained during lockdown so please don't fall into the trap of thinking that there's a prohibition on evictions there was a very recent appeal court case full bench appeal so three judges in the western cape high court that once again confirmed the position that we can in fact grant orders to execute evictions even during the national state of disaster so I'm going to wrap up at this point because Bruno and I will both be present for questions pretty much now and you are welcome to ask us anything if there's any eviction detail that you need we are happy to answer that but like I said you're more than welcome to visit the SSLR stand I have a flowchart not just for when the CPA applies but for the full eviction process so you can see what the actual eviction process looks like in a flowchart form and you are more than welcome to visit our stands for any questions even if we don't have time to get to all the questions but thank you so much for watching and please ask any question that you might still have