At Last – Some (But Insufficient) Relief for Tenants and Property Owners

There has been a lot of uncertainty and concerns raised by tenants, landlords and parties to property transfer transactions since the promulgation of the Regulations dealing with the implementation of Alert Level 4 of the nationwide lockdown by the government on the 29^th of April 2020 which were issued as part of government’s risk adjusted strategy to combat the spread of the coronavirus. In terms of the said Regulations, deeds offices are permitted to resume with operations with effect from the 1^st of May 2020. This means that under Alert Level 4 property transactions can be registered in the deeds offices.

Unfortunately, the movement of persons was restricted under Regulations 16(1) and 16(2) of the Regulations and individuals were not allowed to leave their premises except in certain circumstances of which a person moving homes was not one of them.

This meant that:

1. Tenants could not move into premises in respect of new lease agreements; and
2. Owners could not move into their newly acquired properties which were registered just before the lockdown.

On 7 May 2020 this situation changed when the government published Directions in terms of the Disaster Management Act to facilitate the once-off movement of persons and goods within and across provincial, metropolitan or district boundaries during the period of Alert Level 4 of the lockdown. The Directions must not be read in isolation but in line with the Regulations.

In terms of the Directions, the movement of persons and goods where new lease agreements were entered into before or during the lockdown period, or the transfer of immovable property occurred before the lockdown period, is permitted between the period 7 May 2020 to 7 June 2020. In terms of the Regulations, “lockdown” means the period between 23h59 on 26 March 2020 until 23h59 on 30 April 2020. The current period is defined in the Regulations as Alert Level 4 which is a period applicable from 1 May 2020 and will remain in force up to the declaration of different Alert Levels for the duration of the national state of disaster.

Any person who needs to travel to his or her new place of residence and to transport goods thereto, must obtain a permit (in the prescribed form) to travel across provincial, metropolitan or district boundaries from the station commander of a police station or a designated person. The permit must indicate the persons who are part of the household who will be required to move. The person who is required to move must have in his or her possession the relevant lease agreement indicating the date of expiry of the old lease and the date of commencement of the new lease, or the transfer documents attesting to the change in place of residence or change of ownership of property.

The Directions only allow for movement required to change place of residence in respect of:

1. New lease agreements which were entered into before or during the lockdown period; and
2. Transfer of immovable property which occurred before the lockdown period.

Unfortunately, according to the issued Directions persons whose property transfers are registered at the deeds office, and parties who enter into new lease agreements, during Alert Level 4 will not be permitted to move into their new residences.

Although deeds offices are not opened yet, they will soon be operational. When property transfers are then registered, the government will again come under pressure to issue amended or new Directions to enable persons to change their places of residence.  Hopefully the Directions will at that stage be wide enough to cater for all eventualities.

For now, parties to property transfer transactions are advised to familiarise themselves with the terms of the occupation date in their agreements of sale. If the date of occupation coincides with the date of registration the parties must commence negotiating extended occupation by the seller until such time that new Directions are issued to accommodate for the change of residence in respect of transfers of immovable property which will  take place during Alert Level 4. Furthermore, parties who are considering entering into new lease agreements during Alert Level 4 should be aware that they will not be allowed to move into the new place of residence under the current Directions.

Contact our team of Property Law experts for more information and assistance.