Legal Expert Simon Dippennaar takes a look at exactly what is permitted under the new, “adjusted” Alert Level 1 when it comes to rental housing and evictions of tenants.
It’s hard to keep up.
The regulations for each Alert Level seem to vary each time a level is announced.
Adjusted Level 3 was not the same as Level 3 first time round,
and the same appears to hold true for Adjusted Level 1. So what exactly is permitted, especially with regard to rental housing and evictions?
Evictions under Alert Level 1
The situation regarding evictions and demolitions has not changed very much throughout the national state of disaster.
The priority has always been to protect vulnerable tenants, particularly those whose
economic circumstances have caused them to fall behind in rental payments as a direct consequence of the lockdown.
The rules have eased from the outright ban of Level 5 and, since Level 4, landlords have
been permitted to apply for an eviction order, but it would be suspended or “stayed”
until the termination of the national state of disaster.
In the last period of Alert Level 1, some evictions did take place, and they may still go
ahead this time round, as per adjusted Alert Level 3.
In the words of the government gazette, the eviction can go ahead if a competent court is of the opinion that…
“it is not just or equitable to suspend or stay the order having regard, in addition to any other relevant consideration, to-”.
There follows a list of considerations, including, among others:
The need for everyone to have a place of residence and services to protect their health and access to an alternative place of residence
The occupier’s behaviour, e.g. if they are causing harm to others
The steps the landlord has taken to make alternative arrangements of payment of rent to preclude the need for relocation
Other considerations as described in the gazette
The termination of services in circumstances where:
the landlord has failed to provide reasonable notice and an opportunity to make representations
the landlord has failed, reasonably and in good faith, to make the necessary
arrangements including to reach an agreement regarding alternative payment
arrangements, where applicable
no provision has been made for the ongoing provision of basic services during the national state of disaster
Imposition of a penalty for the late payment of rental where the default is caused by the disaster
Failure of either party (landlord or tenant) to engage reasonably with the other to “cater for the exigencies of the disaster”
Any other conduct that prejudices the ongoing occupancy or the health of any person or the ability to comply with the applicable restrictions on movement.