THE HIDDEN RISKS OF LEASING TO ILLEGAL FOREIGNERS

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THE HIDDEN RISKS OF LEASING TO ILLEGAL FOREIGNERS

Most landlords are unaware of the hidden risks associated with leasing property to illegal foreigners and proceed without a second thought. Often, this is done in good faith, believing that a lease agreement is all that is necessary…. Sadly, this is not the case…

LEGAL PROHIBITION

Section 42(1) of the Immigration Act provides that “… no person, shall aid, abet, assist, enable or in any manner help … an illegal foreigner…”

Accordingly, the legal position is that no person, including a landlord, may help an illegal foreigner. The Immigration Act goes further to clarify that no person, including a landlord, may assist an illegal foreigner, including “… by letting or selling or in any manner making available any immoveable property in the Republic to him or her”.

In light of the above, it is unlawful to leave immovable property to an illegal foreigner, and landlords are advised to properly screen their potential tenants to ensure that they are not leasing to illegal foreigners.

IGNORANCE IS NOT BLISS

When the long arm of the law catches up to the landlord, most landlords would claim that they did not know that the illegal foreigner was in South Africa illegally. Unfortunately, this does not help the landlord.

Section 42(2) of the Immigration Act provides that “In any criminal proceedings arising out of this section, it is no defence to aver that the status of the foreigner concerned, or whether he or she was an illegal foreigner, was unknown to the accused if it is proved that the accused ought reasonably to have known the status of the foreigner, or whether he or she was an illegal foreigner.”

Accordingly, a landlord cannot claim to be unaware of the illegal status of an illegal foreigner to avoid being charged with aiding and abetting an illegal foreigner. The law makes it clear that ignorance of the illegal status of an illegal foreigner is not a defence.

EVICTING AN ILLEGAL FOREIGNER

In addition to the above, the eviction process involving an illegal foreigner can get more complicated in that the Department of Home Affairs may need to be ordered to verify the status of the illegal foreigner and enforce the applicable laws. This is a long and drawn-out process that increases the costs of an eviction of an illegal foreigner and increases the time needed to complete the process.

LEASING TO FOREIGN TENANTS

Here are some helpful tips when dealing with foreign tenants:

  1. Get identification documentation (such as passports) from the prospective tenant to verify the identity of the tenant.
  2. Ask for official government documentation that proves the prospective tenant may legally be in South Africa.
  3. If the prospective tenant claims not to have a passport or other documentation but claims to be in South Africa legally, approach the Department of Home Affairs to verify this and ask for proof from the Department of Home Affairs.
  4. If you are using an estate agent, ensure that the estate agent properly verifies the status of the prospective tenant.

Disclaimer: The above should not be accepted as legal advice, and you are encouraged to seek legal advice.

Prepared by Bruce Barkhuizen, Attorney and Notary.