Answer to a question from a reader

I am unemployed and cannot pay my rent. What do I do?

The short answer

An eviction order granted under Level 2 lockdown can only be carried out after the national state of disaster.

The whole question

I lost my job earlier this year due to the contract ending. I got UIF up until last month to support myself. In the meantime, I was looking for employment but now, because of Covid-19, no one is hiring. I have been struggling to get a job and I cannot afford to pay my rent anymore. I spoke to the landlord and he told me if I cannot pay the rent and if I don't work, I need to look for other accommodation. I started staying there in 2017 and since then I have never missed a payment on my rent. Can you please help me because I don't know what to do and where to go to?

The long answer

This is a really awful situation to be in, but the landlord cannot evict you without a court order. This is under the PIE Act (Prevention of Illegal Evictions From and Unlawful Occupation of Land Act of 1998).

Any eviction order granted now, under Level 2 lockdown, cannot be carried out until the national state of disaster has been called off. The only exception to this is where the court decides that it is not just and equitable to suspend the eviction order.

If you have approached the landlord in good faith to make arrangements about how you can pay off the rent later, the court is most unlikely to grant an eviction order simply on the basis of unpaid rent, especially if you have always paid your rent before.

Because this is an extraordinary time where many people are unable to pay their rent, landlords are being urged to try to find common ground with their tenants on how the debt can be paid with the least damage being inflicted on either side. 

Dave McGlashan of the SA Property investor’s Network suggested that among the compromises that could be made by landlords and tenants were Deferred Rental Agreements (meaning delaying the payment of rent to an agreed future time) and Utilisation of Deposit Agreements (where deposit can be used to pay rent immediately with agreement that the deposit be reinstated in instalments when the state of disaster is lifted.)

He recommended the TPN Credit Bureau’s free Rental Recovery Pack, which contains an Income Declaration for tenants, besides the deferred rental agreement and the deposit utilisation agreements mentioned above. The Income Declaration document allows tenants to officially declare that their income has been affected by the Covid-19 lockdown whether this is by retrenchment, short time, temporary unpaid leave or shortened working hours. The landlord can then verify this with the tenant’s employer and ask for supporting documentation.

The main idea is that the landlord has some security of knowing that the rent will be paid eventually, and the tenant is granted some immediate relief.

Although the courts recognise that landlords are under stress because they are not receiving rent payments, the courts also recognise that people who are unable to pay rent because of the Covid-19 crisis cannot just be put on the street. 

The disaster regulations have said that landlords cannot impose penalties for late payment where the person has not paid because of the lockdown. The most landlords can do is to charge interest on late payments.

The regulations also forbid “any other conduct prejudicing the ongoing occupancy of a place of residence, prejudicing the health of any person or prejudicing the ability of any person to comply with the applicable restrictions on movement that is unreasonable or oppressive having regard to the prevailing circumstances.”  In simple language, it means that landlords can’t just kick you out under the lockdown.

So, if the landlord wants you to move out, he must inform you that he will be seeking an eviction order from the courts, and he must give you a copy of the court hearing date. You must attend that hearing and you will be allowed to give your side of the story, as well as the owner. You can be represented by a lawyer at the hearing and if you cannot afford a lawyer, you can ask Legal Aid to represent you. The municipality must also attend the hearing to say if they can provide emergency housing if the court grants the eviction order. The court must take into account the reason for an eviction, how long you have stayed there, whether there are old people or children who will be affected, and whether the municipality can provide alternative accommodation.

This is Legal Aid’s contact information, if you need to consult them:

Legal Aid Advice Line (Toll-free): 0800 110 110

Legal Aid Ethics Hotline: 0800 153 728

Please-Call-Me number: 079 835 7179

Answered on Aug. 26, 2020, 12:37 p.m.

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Please note. We are not lawyers or financial advisors. We do our best to make the answers accurate, but we cannot accept any legal liability if there are errors.