Evictions and The National State of Disaster: Where Does the Agent Stand?
The Covid-19 pandemic that has been turning the world upside down since 2020 has unleashed a storm of unprecedented stress and tension on people of all walks of life, leaving everyone drained by persistent challenges never experienced before. South Africa’s economic situation and unemployment numbers are depressing to say the least, raising further fears in an already dismal property industry.
The current circumstances, fake news, particularly on social media, has been creating a pandemic of its own by infecting opinions of those easily deceived, that evictions are not permitted due to the National State of Disaster. This is definitely not the case! Evictions are still legal and possible, although they may seem to take somewhat longer than usual.
Why is this?
Evictions are never enforced without a court order.
Understandably, varying dregrees of lockdowns have slowed an already protracted process within the court system. This is why it is necessary to start the eviction process as soon as possible. Prior to the National State of Disaster, an eviction usually took 6 to 8 weeks. Now it can take between 3 to 6 months, even when the matter is unopposed. The process begins with a Notice of Motion that has a founding affidavit accompanying it. This affidavit must be signed by the landlord or someone who has been granted Power of Attorney to do so on the landlord’s behalf. Both the right of property ownership and unlawful occupation of the occupants have to be proven within the Notice of Motion and the accompanying affidavit.
What is the Agent’s Responsibility when it comes to evictions?
Rental agents as well as landlords seem to fear situations which may result in evictions. Many agents who have built relationships with the tenants may find themselves feeling guilty when eviction proceedings commence. This feeling is not necessary because once the notice of cancellation of the lease agreement has been issued by the landlord to the tenant, the agent is relieved of their duties and must step away.
Speaking as attorneys, we actually need you to stay away. In every instance the landlord is responsible for starting the eviction process. The only time that an agent needs to remain involved in an eviction matter, is if the landlord has given you written Power of Attorney to act on behalf of the owner, due to them being out of the country, or unable to act personally for some other reason. It is vitally important to note that at no point should an agent feel they need to protect the landlord, when you have fulfilled your mandate diligently. This is not on you, this is a risk accepted by all property investors!
When can an Agent Start Looking for a New Tenant?
In order for the physical eviction process (the removal of the unlawful occupant) to begin, a court order must first be granted. Some agents are under the impression this is the point at which they can begin listing the property and looking for a new tenant. This is NOT the case! The court order is only the beginning of the process and at this point a warrant of eviction has to be issued. We then have to wait for the sheriff of the court to give effect to this warrant. As the agent, you are obligated to sit tight during this process and remain in communication with the attorney who is handling the eviction. The attorney should keep you updated and let you know when you may begin listing the property again.
When will an Agent be Responsible to Pay for an Eviction?
This is where it is critically important to follow due process – and not your heart – when it comes to placing a tenant in a property. Particularly when it comes to the receiving of the first month’s rental and the deposit. Should you, as an agent allow the tenant to move into a property without making sure the first month’s rental and deposit has been received and reflected in the relevant bank account, this will be seen as gross negligence. Consequently it can lead to a situation where the agent may well be responsible for payment of legal costs and even damages to the landlord.
How do we Offer Support for Agents when it Comes to Evictions?
At SSLR we are committed to the rental property industry and with this commitment comes a responsibility to support rental agents as far as possible. Part of this support is the need to ease the apprehension that exists around evictions and equip you with as much information and understanding as possible.
For more detail on the content of this article, please follow this link to a full training webinar on the eviction process. https://youtu.be/3-w-PZAljuo
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