AA - Jan 2021

Author: property 24
26 January 2021

Level 3 Evictions / What is considered unfair practice?

Now that we’ve back in Alert Level 3 of the National Disaster Act, what is the state of play with evictions?

There’s a strong sense of déjà vu in the country at the moment. If it weren’t for the weather, you might think it was July all over again. We’re in the middle of a devastating second wave of COVID-19. So the government has had to rewind the Disaster Management Act back to Alert Level 3. Tenants and landlords want to know if evictions are still permitted, as they were under Alert Level 1?

Although the Level 3 regulations have been adjusted, certain core conditions remain. According to the Disaster Management Act regulations, “A person may not be evicted from his or her land or home or have his or her place of residence demolished for the duration of the national state of disaster unless a competent court has granted an order authorising the eviction or demolition.”

However, a landlord may still apply to the court for an eviction, which may be suspended until after the national state of disaster is lifted, or such time as the rules allow.

Furthermore, the court may allow an eviction if it feels that it is not just or equitable to suspend the order. This might occur if, for example, an occupier is causing harm to others or there is a threat to life, or if the party applying for the order has taken reasonable steps in good faith to make alternative arrangements with all affected persons.

However, the regulations stress the importance of fair practice by landlords…what I call “commercial ubuntu”. Unfair practice includes:

  • Failing to provide the tenant with reasonable notice and an opportunity to make representations
  • Failing to make the necessary arrangements to reach an agreement regarding alternative payment arrangements, where applicable
  • Failing to make arrangements for the ongoing provision of basic services
  • Imposing a penalty for the late payment of rental where the default is caused by the disaster, regardless of what form the penalty takes (so for example a landlord cannot disguise it as an “administrative charge”)
  • Failing to engage reasonably and in good faith to make arrangements to cater for the extenuating circumstances of the disaster

Now this last point applies to both landlords and tenants. Government has called on all parties to engage with one another and keep the lines of communication open. This is the basis of commercial ubuntu.

It’s important to remember that both parties are impacted by the lockdown. Tenants may have suffered loss of income and find it hard to pay rent. But landlords too may have bond payments to make that are affected by non-payment of rent. The rights and circumstances of all parties are equally important. Landlords, tenants, lawyers and agents alike must all exercise social responsibility and compassion.

If your current situation is giving you cause for concern, don’t wait until the national disaster is over to take action. However bleak things may seem, there is always something that can be done. At SD Law, I’ve been helping landlords and tenants negotiate leases and all manner of rental property matters for nearly 10 years. My past experience can help you resolve your current issue. The sooner you take the first steps, the easier it is to find a solution.

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