Renting property can be an enjoyable and profitable exercise for many landlords, but it won’t always be smooth sailing and there are going to be times where you are faced with tough decisions. Hopefully, you always find reliable tenants and you can avoid the pain of mediation.
Some landlords, however, will be faced a situation where their tenant cannot afford to pay the rent anymore and in most cases, the tenant will leave voluntarily, but what happens in the case where the tenant refuses to move out? This is where situations need to be handled carefully and both parties legal rights need to be respected. In cases like these, a legal eviction is an option but you need to consider the following steps.
When should you start the eviction process?
The first step
The first step is issuing a warning in the form of a written letter, to remedy the breach within whatever time frame is specified under the breach of contract section of the lease, or 20 days according to the Consumer Protection Act. If the tenant does not remedy the breach in full, the landlord can then start the process of cancelling the lease.
Sunell Afrika, rentals manager for SAProperty.com, says they find that some landlords are too lenient, giving their tenants chance upon chance to rectify situations.
Afrika says as soon as there is breach in the contract, that is, if the tenant has failed to pay his rent or has gone against any of the conditions stipulated in the lease, the landlord has the right to put the tenant “on terms” notifying him that the lease will be cancelled if the breach continues. If the lease is cancelled, but the tenant refuses to move out, the landlord would then start the eviction process.
How the law works
The PIE Act governs evictions from residential property; it does not apply to property leased for commercial, industrial or agricultural purposes, or to holiday accommodation. This act only deals with whether or not the property is used as a dwelling.
The registered owner of a residential property, or person in control of such premises, has the right to initiate proceedings under the PIE Act. Examples of a “person in control” are:
- A rental agent who acts on the lawful instructions of the owner;
- A tenant who wants to evict a sub-tenant; or
- An executor of an estate that includes a residential property.
To bring an application successfully, the applicant must show that he or she is the owner or the person in control of the property and that the respondent is an unlawful occupier.
The Act defines an unlawful occupier as “a person who occupies land without the express or tacit consent of the owner or person in charge, or without any other right in law to occupy such land, excluding a person who is an occupier in terms of the Extension of Security of Tenure Act, and excluding a person whose informal right to land, but for the provisions of this Act, would be protected by the provisions of the Interim Protection of Informal Land Rights Act”.
Once you, as a landlord, cancel a lease agreement, a tenant is no longer a tenant, but an unlawful occupier.
Following the law
A landlord cannot take the law into his own hands and lock the tenant out, nor can he enter the premises and claim items that belong to the tenant to sell in lieu of rent that is due, as this would be theft.
It can take some time to evict a tenant, and an attorney has to apply for an eviction order. Once this has been issued, the Sheriff of the court will serve the notices, one to the tenant and the other to the local municipality. Fourteen days’ notice has to be given that a hearing will be taking place.
The tenant will be able to state his case at the hearing as to why he should be able to remain and that an eviction order cannot be granted. It has to be remembered that the courts will only grant the eviction order after considering all the circumstances and has established what is just. If there are special circumstances, i.e. a single mother with a child, the courts may not grant an eviction order straight away.
If the tenant falls behind in their rent, the landlord must take action immediately and not wait for matters to rectify themselves, as he must protect his asset and future income. Some tenants can make many empty promises, which results in a big rental loss for homeowners and while you can sympathise with a tenants plight they simply not meeting the agreement stipulated when you entered into the contract.
Landlords need to remember that this a business transaction, leave emotions out of it to a point, and also follow the guidance of the rental managing agent as they are the ones dealing with the tenant from day to day.
If you need advice on your eviction case or would like us to represent your case, get in touch with Le Roux Attorneys