10 PRACTICAL PROBLEMS WITH THE NEW MOVING REGULATIONS

  1. The regulations only cover once-off moves that are necessary.

  2. The regulations do not cover travelling between various properties owned by a person.

  3. The regulations do not cover other non-essential moves.

  4. The regulations do not cover temporary moves. Regarding 2, 3 and 4 this is evident from the documentation listed in paragraph 3 which must be in the possession of the person moving. A lease, or a document relating to the transfer of property and occupation thereof are required; these have to do with relocation of a permanent nature, and not temporary or recreational moves.

  5. It is unclear whether moves within a district, province, or metropole require permits. In this respect it is likely safer to obtain one even though it may not be strictly necessary on the wording of the regulations.

  6. Properties may still be occupied by tenants who are holding over; as eviction orders cannot be carried out at this time, the tenant who is entitled to move into the new property in terms of the regulations will be unable to do so.

  7. In many cases, ingoing inspections will not have been conducted as yet. Estate agents are not essential services and therefore will not be permitted to conduct ingoing inspections. (a contentious point I know, but see my views below) This will mean that landlords will have difficulty recovering the cost of repairs once the leases come to an end.

  8. There is no clarity on how landlords or agents will be permitted to hand keys to tenants who are entitled to move. One would think that simple drop off would be permissible but this is speculation as the subject is not covered in the New Relocation Regulations.

  9. Many people only have oral leases (as residential rental property law currently does not require a lease to be in writing); these leases are valid and yet, the regulations do not specify how to prove such a lease when moving in terms of the regulations. This is a difficulty but not an insurmountable one; the terms of an oral lease can simply be put in writing, and that written recording can then be used. What is unfortunate is that the regulations simply have not made provision for this situation.

  10. Tenants who concluded lease agreements during lockdown will no doubt not have been able to view the property; this could also lead to tenants being stuck in a property which is not satisfactory and thus be left without recourse.

ESTATE AGENTS ESSENTIAL OR NOT?

How do all of these regulations affect estate agents and property owners? The point of departure is that estate agents are not essential services as circumscribed by the 29 April Regulations. The 29 April Regulations set out in Table 1 which activities and industries are permitted to perform work outside the home and to travel to and from work. The industries which provide essential services can continue essentially in their entirety.

In terms of item 9 of Part H of Table 1 states that under Alert Level 4, other professional services may operate where work-from-home is not possible, and only to support other Alert Level 4 services. This means that insofar as the functions of an estate agent are required to assist a service which is permitted under Alert Level 4, it is permissible.

The question then arises if assisting a relocation permitted in terms of the New Relocation Regulations is an essential service, or can be considered to be in support of a permitted Alert Level 4 Service. Quite plainly real estate activities

are not Alert Level 4 services. And in my opinion, the wording of the regulations does not allow relocations to fall within the definition of “Alert Level 4 Services”; they may be permitted Alert Level 4 Activities, but that appears to be of no consequence.

This is unfortunate, as it means that ingoing and outgoing inspections will not be able to be conducted.

There have been reports that some estate agents have been able to obtain permits entitling them to conduct inspections in cases where people have moved in terms of the Relocation Regulations. Still others have relied on permits obtained from CIPC in order to justify ingoing and outgoing inspections. In relation to the permits issued by CIPC it should be noted that the last 3 paragraphs of the permit read as follows:

“This certificate does not in itself constitute the right to continue operating during the period, and it is the responsibility of the company to ensure that it complies with the regulations.

Only businesses which provide essential services in terms of the Lockdown Regulations, as amended, issued by the Minister for Cooperative Governance and Traditional Affairs may continue their operations during the COVID-19 lockdown, and only in respect of goods or services defined as essential in the regulations.

False declaration by the company is a criminal offence and will result in prosecution. This certificate may be revoked if there are changes to the regulations or in order to improve implementation of the lockdown.”

The paragraphs quoted above indicate to me that the permit does not purport to permit any activity in and of itself. One should therefore not be under the mistaken impression that simply having such a “permit” will allow activities which otherwise would be impermissible.

In the end, the regulations still make no mention of ingoing or outgoing inspections of property; whether these are permitted is an open question, although, in my opinion, on a strict wording of the regulations, they are not permitted. In this respect it is advisable to err on the side of caution, as taking chances may result in detention by SAPS.

HOW TO DEAL WITH THE UNCERTAINTY CREATED

In these uncertain times, and especially with so much government regulation, there is bound to be uncertainty. The best way to deal with this, in my opinion, is to consult with police officers as they will ultimately be the ones enforcing the regulations as they understand them. It must be said that what one police officer allows may not be allowed by another, and therefore there is a measure of risk in relying on their advice, whatever it is.