Landlord must allow tenant to pay off arrears
TENANTS in rental arrears during the lockdown period must communicate with their landlords to find a reasonable solution. Landlords must give their tenants an opportunity to enter into a settlement agreement to pay off their rental arrears and landlords or tenants need to engage reasonably and in good faith (alert level 2 regulations 54(2)).
Once a landlord can demonstrate that all the necessary steps were taken, from a letter of demand to an opportunity for the tenant to respond to an alternative payment arrangement, legal action may follow. The legal action may be attaching the tenant’s personal belongings or summons with a rent interdict.
Once the court order is granted, it is enforced by the sheriff.
The law gives the landlord the right to attach and sell the tenants’ personal belongings to recover rental owed. This right is referred to as the landlord’s lien or tacit hypothec and is often referred to as an attachment. It is the landlord’s real right to the tenant’s goods that are in his or her dwelling (Webster v Ellison 1911 AD 73), including the tenant’s money (Kahn & Lotz (1998)).
In other words, the landlord has the right to seize the tenant’s movables or money, but this right, which is implied or unspoken, has to be perfected by following certain legal procedures. The landlord can obtain a court order instructing the sheriff to attach the tenant’s personal goods on the rental property for the tenant-debtor’s failure to pay rental.
The landlord can lodge a complaint for unpaid rentals and seek an attachment order through the Rental Housing Tribunal in terms of section 13 (12)(c) of the Rental Housing Act.
In the absence of an unfair practice, the landlord can also perfect the hypothec through the magistrate’s court. In terms of the Magistrate’s Courts Act, 32 of 1944, the landlord can use:
i) A section 31 application whereby a summons with an automatic rent interdict is issued. A rent interdict prevents the tenant from removing her or his personal belongings over which the landlord has a right for unpaid rentals.
ii) Section 32 (attachment of property in security of rent) allows for the tenant’s goods to be attached by the landlord deposing to an affidavit. The information in the affidavit must include:
◆ the address of the dwelling.
◆ the amount of unpaid rental. ◆ tenant was placed in mora (default) and despite the demand to pay in the space of seven days and upwards, failed to pay the arrear rental, or
◆ that such demand was made and that the tenant is about to remove the goods from the dwelling to avoid payment of the rental.
An attachment order gives the landlord real security and allows the sheriff to identify the tenant’s goods and list these on an inventory, pending the court’s final order. The goods may be removed and stored by the landlord or remain in the dwelling to be sold later.
SUMMONS OR APPLICATION
The landlord can issue a summons on which the claim is stated. There are two types of summonses that the landlord could serve on the tenant:
1. Ordinary.
2. Rent interdict.
What should the tenant do on receiving a summons or an application?
◆ Enter “an appearance to defend”. If the tenant does not know how to do this, immediately consult an attorney, nearest community organisation or approach the justice centre (legal aid).
◆ If the tenant does not respond to a summons immediately, default judgment can be taken against him or her followed by an ejectment order.
◆ A tenant must ensure that he or she has a proper defence, that is, a reason why the court should not give judgment in favour of the landlord. If the tenant does not have a good defence, he or she may lose the case and will have to pay the landlord’s legal costs as well.
Examples of a good defence: a. Where the tenant has, in fact, paid the rent, but the landlord is suing for arrears.
b. Where the tenant has a claim against the landlord for some other reason and the money the landlord owes him or her cancels out the money owed to the landlord.
c. Where the landlord has failed to carry out repairs to the dwelling, which he or she is obliged to undertake, and the tenant carries out the relevant repair and recovers the cost from the landlord by withholding the rent, provided the tenant followed the procedure of “Repair and Deduct” or was not prevented from doing so by any lease condition.
Once the court grants an order, the tenant is faced by the sheriff literally knocking on the door to remove the tenant from the dwelling together with his or her personal belongings. An interdict would be the only way to stop the sheriff. This may be too late in most situations since it also involves drafting legal documents in which the tenant must state that she has grounds and a bona fide defence to the main cause of action started by the landlord and would have defended the action if aware of the existence of the summons or application or other court process.
The sheriff, as an independent officer of the court, receives his or her instruction from the court.
The act and rules of the magistrate’s courts and superior courts provide the instructions as to how court processes are to be served and how to carry out or execute the courts’ warrants and orders.
The warrant for ejectment is an order from the court, instructing and empowering the sheriff to remove the tenant from the rental property with his or her belongings. The warrant to execute a court order would have its beginning in a summons or an application that must be defended within the time limit prescribed by court rules.
It may be that the landlord cancelled the lease, requiring the tenant to move out of the dwelling at a given date, followed by a summons after the tenant failed to move out. Whatever the cause for the cancellation, once a court process is served, it must be defended.
◆ Tenants who need advice during the lockdown can WhatsApp Pretty Gumede at 071 346 5595, Loshni Naidoo at 071 444 5671, or email loshni@ ocr.org.za and Dr Mohamed at civicrights@ocr.org.za