Can landlords now evict tenants?
Regarding evictions, the rule regarding evictions remain the same as per level 4 - meaning they are not allowed to be enforced, except under exceptional circumstances.
"A competent court my grant an order of eviction provided that the order of eviction may be suspended until the last day of the Alert Level 3 period unless a court decides that it is not just and equitable to stay and suspend the order," says Dickens.
Property law expert Jaco Rademeyer says COVID-19 may potentially affect both landlords and tenants financially, leaving either party unable to meet their financial obligations. It is therefore imperative that all parties become involved in finding solutions, should this occur, advises
"If you get an eviction notice in this period it is not enforceable before lockdown is lifted completely - only if a court application is brought and decide by the court, can an eviction be effected."
Rademeyer says it is important to look at what lease agreements provide from a legal perspective, it is important to look at the common law principle of “force majeure” or “Act of God”. This “force majeure” can cause an agreement to become impossible to comply with and can cease a party’s contractual obligation as a result of the principle of a “supervening impossibility”. An Act of the State falls within the ambit of “force majeure”. For a party to raise the lockdown as a defense against non-performance of paying rent (as example), it must be shown that the lockdown is the reason for the non-performance.
"If the lease does not contain such a clause, then the common law will apply. In terms of the common law, parties can rely on “supervening impossibility of performance” to suspend their obligations under the contract. An example would be if the landlord can’t offer the tenant free use and enjoyment of the premises. We would advise landlords to have a look at their agreements and what they provide for. Furthermore, investigating insurance policies (commercial leases) and whether they provide any relief mechanisms to cover for example rent payments, is an avenue to explore.
"Strategic financial planning, negotiation and consultative discussions are the only way to overcome the effects the lockdown may have on the rental relationship."