Section 26 of the Constitution:
This section stipulates that everyone has the right to access adequate housing and that it is the duty of the state to provide its people with the necessary resources to have said access.
We, however, know that in South Africa there is already a high percentage of our population that do not have adequate housing and we also know that our government does not have the necessary resources to rectify this epidemic.
With COVID 19 on the rise and many people being retrenched the number of evictions and homelessness it seems will only increase.
In normal situations, there are two or more parties to a lease agreement whether it be commercial or residential. If the tenant defaults on their monthly payments the owner would give notice of default, place the tenant in breach, cancel the agreement, and then would sue the tenant for arrear rental.
However, these times are different in that no one could have foreseen the possibility of a virus affecting our lives so suddenly and having such a drastic impact.
Within a contact, there may be two clauses that make provision for such unforeseen circumstances.
- Force Majeure: This is an act of God, one that neither the tenant nor the owner had any control over. Because of this act, no one could go to work and earn an income and therefore could not pay rent or meet their other financial obligations.
- Supervening impossibility: This is an impossibility to act either physically or legally. One cannot work during lockdown and alert levels or be vacated at certain times legally due to the regulations given by the government.
Solutions to non- payment:
Your agreement should lead you in terms of the path you can take however, these are difficult times and in saying that this leaves the door to communication and negotiation to take place. The following have been brought up lately as the main solutions:
- Deposit utilization: Using the deposit the tenant put down that is usually returned if no damage to the property is found when they vacate the premises. This can be used in the place of rent.
- Deferment of rent: Some refer to this as a payment holiday. This essentially just means that for a period of time you will be on a reduced payment plan or in some cases will be granted to not pay anything depending on your financial circumstances. This “holiday” however will ultimately increase your payment period and increase your interest on your payments in the long run especially for those who have bonds.
It is important that everything is agreed in writing between the parties and that there is compromise during this time as litigation will indefinitely be expensive if not solved amicably.
Previously the Disaster Management Act had stated that during lockdown no one could be removed from premises, this has since been repealed.
According to Regulation 19 of the Act one can Evict a tenant at any time however said eviction will have to be stayed until the end of alert level 4 which has yet to be announced and will need to be stated in the PIE application.
For any questions on property law whether you are a tenant or an owner please contact us on Charmaine@schwenninc.co.za or call us on 031 003 0630.