Question received on the topic of eviction:
“Good Day. About a year or so ago I rented a house from an agent when I moved the
agent said he’ll just transfer my deposit to the other house that I
was about the rent from him. So I moved into the house the rent was
R4000 I paid him R5000 plus he had my deposit of R3800.
I moved in End of January which ment my contract would end the next
year end of January. In October that year I was in arrears for one
month which I paid in November and beginning of December, I told the
agent I am going to move end of January an he said no I must move end
of Feb. One day in Jan I went to my moms house when I got back at night there
was a big chain around the gate, they said I owed them R4000.00 I than
argued but end up paying it my furnitures was still in the house when
I went back to get my furniture the agent said it is safe. the next
day the agent called me and said the owners of the house sold all my
furniture which I still owed. I did go to court but never carried out the situation and now I am
ready and want to know what I should or can do or if its to late to do
anything now since its about a year ago”
Reply:
The good news is that it is not too late to take action and hold the lessor (person who rented the house to you) accountable for withholding your deposit, claiming additional rent from you and for selling your furniture without a court order!
According to the Prescription Act, your specific monetary claims and interest against the lessor only prescribe (expire/ become invalid should the lessor defend the case by pleading the defence of prescription) after THREE years.
We suggest that you contact the Rental Housing Tribunal in your area. The Rental Housing Tribunal is a free service and is in a position to arbitrate the dispute and make a binding order against the lessor. According to section 13 of the Rental Tribunal Act, ‘a ruling by the Tribunal is deemed to be an order of the Magistrate’s Court.’ You furthermore do not need legal assistance or representation during the hearing at the Rental Housing Tribunal.
However, it is you who would have to prove your claim against the lessor by way of receipts/ bank statements, any correspondence between yourself and the lessor (lease agreement, emails, text messages, letters), affidavits, etc.
Assuming that you rented the house in the Western Cape, the following two forms should be completed and submitted to the Rental Housing Tribunal:
http://www.westerncape.gov.za/assets/departments/human-settlements/docs/rental-tribunal/hs-rentalhousingtribunal-fa-failure-to-refund-deposit.pdf
http://www.westerncape.gov.za/assets/departments/human-settlements/docs/rental-tribunal/hs-rentalhousingtribunal-fk-unlawful-seizure-of-possessions.pdf
Please note that as of April 2011, in terms of Consumer Protection Act, a lessor is obliged to place a deposit in an interest-bearing account. This means that once the lease period ends, the lessor is to pay over the deposit PLUS interest that accumulated during the lease period (minus the cost of damages you caused to the property/ any arrear monies).
Should you not be situated in the Western Cape, simply Google search ‘Rental Housing Tribunal South Africa’ in order to locate the tribunal closest to you and its applicable complaint forms.
It was furthermore unlawful of the lessor to chain your gate. In terms of section 26 (3) of the Constitution of the Republic of South Africa, 1996, a lessor is not allowed to evict/ lock you out without first obtaining ‘n court order.
For a lawful eviction, a lessor has to apply to court in terms of section 4 of the Prevention of Illegal Eviction Act (PIE). Before you can evict someone in terms of PIE, that person needs to be an unlawful occupier. This means that the person residing on the property is doing so unlawfully (without consent/ a lease agreement/ the lease period has come to an end). This is a lengthy and costly experience:
Step 1: The owner sends the occupant a written notice asking him/her to vacate the premises within a reasonable time (a minimum of 30 days);
Step 2: Should the occupants not vacate the premises within that time period, step two would be to notify the occupant in writing that the owner intends to apply for an eviction order. This notice must be served 14 days prior to the court date;
Step 3: Once in court, section 4(6) and (7) of PIE set out the factors taken into account by the presiding officer before deciding whether or not to grant the eviction order:
“(6) If an unlawful occupier has occupied the land in question for less than six months at the time when the proceedings are initiated, a court may grant an order for eviction if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances, including the rights and needs of the elderly, children, disabled persons and households headed by women.
(7) If an unlawful occupier has occupied the land in question for more than six months at the time when the proceedings are initiated, a court may grant an order for eviction if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances, including, except where the land is sold in a sale of execution pursuant to a mortgage, whether land has been made available or can reasonably be made available by a municipality or other organ of state or another land owner for the relocation of the unlawful occupier, and including the rights and needs of the elderly, children, disabled persons and households headed by women.”
As for selling your furniture, please note that the lessor does have something called a landlord’s hypothec in his/her favour meaning that your furniture and other movable property may be sold to cover your arrear rent. However, this hypothec may not be enforced without first giving you written notice of the arrear rent and allowing time for repayment before applying to court to enforce this right. Next the sheriff will get involved and only auction the movable property to the value of the arrear rent after advertising same.
We hope this helps and we wish you a fantastic 2015.
Legal Hero
