How to handle evictions legally and ethically
Sometimes an eviction is legal but not ethical – know the difference
You’re a landlord. Your tenant has breached one of the conditions of the lease agreement, and you want to evict them. But you always try to behave in a decent manner and you want to ensure your action is not only legal but ethical. What are your key considerations?
Legal vs. ethical
Surely if an action is legal it is ethical, right? South Africa has a rights-based Constitution and our laws are based on guiding moral principles, so what’s the difference between legal and ethical? Acting legally means, as the word suggests, acting in accordance with the laws of the land. Acting ethically means choosing between right and wrong behaviour. Sometimes the two are synonymous and few people would disagree: for example, taking someone’s life, except in extreme self-defence, is against the law and universally believed to be morally wrong. However, other situations are not as clear-cut. In many countries it is perfectly legal to test cosmetics on animals; but many people feel it is wrong, or unethical. Some South Africans believe it is unethical to raise and kill animals for meat. But it is entirely legal and considered acceptable by most people in this country.
“Ethics” refers to an individual’s personal code of conduct, which may be based on particular social, religious, or other group norms. For this reason ethics can vary considerably between different communities in the same country: in traditional South African cultures, polygamy is practised. But it is condemned by other groups within South Africa. People who follow the Muslim faith believe drinking alcohol is wrong. Other South Africans regularly enjoy an alcoholic drink. The law cannot accommodate everyone’s ethics. Ethical (or moral) behaviour is governed by a different force, either internal or driven by community norms. But everyone must obey the law, which exists to maintain social order, establish standards, resolve disputes, and protect liberties and rights.
When it comes to evicting a tenant…
A lease agreement is a legal contract, which means there are responsibilities on both parties, and both parties have certain rights. Inevitably, the person who owns the property (the landlord) holds more power than the person renting it (the tenant). Historically, landlords often exploited tenants and many injustices were committed, often in conjunction with other injustices that had a racial, socio-economic or gender-based motive. After democracy, legislation was enacted to protect tenants from unscrupulous landlords. A landlord may still evict a tenant who has breached the conditions of the lease, but the law ensures that a thorough process is followed, with reasonable timelines, to avoid putting tenants out on the street without a roof over their heads. It ensures fair and equitable behaviour and prevents exploitation.
Eviction process
We’ve written extensively about the eviction process elsewhere on this site so we won’t give a lengthy explanation in this article. The blog post Legal reasons for eviction goes into detail about the legitimate causes for evicting a tenant and how to go about it. We also provide advice to tenants on how to defend against eviction by a landlord. Briefly, to evict a tenant a landlord must give the tenant notice of the breach of the lease and time to rectify the breach. If the breach is not rectified within the specified time frame, the lease can be terminated. If the tenant does not agree to vacate the premises, the landlord may apply to the court for a tenant eviction order. The municipality must also be notified. The tenant may defend the eviction, in which case a trial date is set. In the absence of a defence, a warrant of eviction is issued. Only a sheriff can physically remove a tenant or their possessions from the property.
Ethical considerations
If this process is followed, the landlord is acting within the law. But what if the tenant is a single mother with two young children who has just lost her job, and has failed to pay the rent as a result? She is unable to rectify the breach within the specified time because she has not yet found another job. She is unlikely to find alternative accommodation in her current situation, and the cost of the removal alone will cause further hardship. Is it ethical to evict her? As we’ve seen, ethics is a highly personal subject, but most would agree an eviction would be unethical.
In another scenario, the tenant is a father of four children and he is the sole income earner for the household. The mother looks after the children and does not have paid employment. The father has an accident at work that renders him unable to work for three months. As a casual labourer he is not entitled to sick pay. But his employer has indicated that his job will still be there for him when he has recovered. He is unable to pay the full amount of rent for three months, but will eventually be financially stable again. Is it ethical to add to his troubles by evicting him and his family? Again, most people would say “no”. A degree of compassion is called for.
PIE
Fortunately, rental housing legislation is underpinned by strong moral principles. The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) was promulgated to provide for the prohibition of unlawful occupation and to put in place fair procedures for the eviction of unlawful occupiers. However, it also provides a degree of protection to occupiers who may find themselves unintentionally unlawful, such as the single mother or injured father discussed above. PIE requires the courts to give special consideration, when hearing an eviction case, to the elderly, households headed by women and/or with children, and disabled persons. A tenant can also defend against an eviction on the grounds of health or wellbeing, i.e., the eviction would have a negative impact on their health.
While a court may still grant an eviction order in any of these circumstances, the order will usually be “stayed” (delayed) to give the tenant more time to find alternative accommodation. Here, the law and ethics overlap. But a sympathetic landlord could go one step further and behave ethically without force of law. The single mother could be given extra time to find a new job and get back on her feet. A repayment plan could be negotiated. The injured father could be granted a three-month rent reduction or amnesty. Most landlords rely on their rental income; granting an amnesty indefinitely or even for a short period may not be commercially viable. But in many parts of the country, it could take three months or longer to find new tenants. Evicting the single mother or the injured father and their families immediately could result in an empty property that could take months to fill, rendering the landlord no better off financially. A bit of leniency might be the best solution for everyone, especially if the occupiers are in all other ways good tenants. At the very least the landlord could offer help to the tenant in finding cheaper accommodation and perhaps support with moving. Or the landlord could agree to a three-month notice period rather than one month, if they decide to pursue eviction through the courts. This would be legal and more ethically sensitive.
For further information
Simon Dippenaar & Associates, Inc. is a law firm of specialist eviction lawyers in Cape Town, Johannesburg and Durban. Contact one of our eviction attorneys on 086 099 5146 or simon@sdlaw.co.za if you need help with the legal or ethical aspects of an eviction matter, whether you are landlord or tenant.