Owning property as an investment can be lucrative, but it’s also a big responsibility. Property rental in a residential capacity is a popular passive income generator among many South Africans but not everyone getting into this market are aware of the pitfuls, legal obligations and issues they can run into. It’s all good and well when your property is an income-earning asset, but what happens when your tenants aren’t paying or breaches your lease agreement? In South Africa, there are a few legal actions to take when you plan to evict your tenant.
Have the Right Agreements in Place
Although it’s not compulsory, it’s highly recommended for landlords to have a written lease agreement in place. This document should clearly list the consequences of breaching so that both parties are protected should they not follow through their obligations. Once the tenant is in breach of the agreement, you are legally entitled to start the eviction process.
How to evict a non-paying tenant from your home
Starting the Eviction Process
Unfortunately, landlords aren’t always clued up on the legalities of the process and that could damage their case. Mistakes made by landlords include:
- Creating a tactic lease after cancellation of the lease and accepting rent payment
- Sending invoices or letters of demand after lease cancellation
Accepting rent or demand the payment thereof implies that there is a lease agreement in place. This contends the argument that the premises are being occupied unlawfully.
It’s good practice to send a letter of notification to your tenants before formally starting the process. This letter should be a reminder of your lease agreement and inform them how they are in breach thereof. Reference the document clearly and example the process to follow.
If you are feeling lenient, you could give the tenant a deadline for payment. If he/she still neglects to pay you can inform them of lease cancellation and request that they vacate the property. It’s a good idea to get a lawyer to assist with the letters and documentation.
Next Legal Steps:
If the tenant doesn’t vacate the property or disputes your lease agreement, you will have no choice but to seek legal assistance in proceeding with the eviction order.
- Apply to the court to for a Tenant Eviction Order
- The Tenant Eviction Order is Issued by the court 14 days before the hearing
- During the court hearing, tenants need to prove that they have a defence
- Should the defence be valid, a trial date is set. If invalid, a warrant of eviction is issued where the tenants are legally removed from the property.
Note that the sheriff of the court is the only individual that may manage the eviction of the unlawful occupant. The court will explain the conditions regarding eviction, demolition or removal and the sheriff must be present during the process.
Keep the Timeline in Mind
Once you cancel the lease, the countdown of six months start. If the occupants have been living on the property for more than six months, the landlord faces a bigger challenge. This is relevant because of a clause in the PIE act that might obligate the court to investigate the circumstances and conditions for alternative accommodation.
Should you require legal advice or want us to represent your eviction case then feel free to get in touch with our team of attorneys here