Article: Residential Tenants And Evictions
Tough economic times often see an upsurge in certain types of legal activity. One such activity is the eviction of tenants. This can either be due to non-payment or because of breach of some or the other obligation towards the landlord.
Tenants are protected by the Rental Housing Act and Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (short: PIE).
The Acts (often unfortunately for the Landlord) results in evictions through court not being a quick and easy route to follow to evict a tenant. It is, however, the only legal way to evict a tenant and attempts to evict in any other way may result in legal action being instituted against the landlord.
How to make it easier
It is important to know how to act when a tenant is in breach, but often practically more important, is how to deal with a tenant from the very start. In Property Law, there are three important steps before allowing a tenant in your property:
1. Credit Check – Phone your tenant’s references and do a credit check with a credit bureau.
2. Lease Agreement – Have an attorney draw up a valid and binding Lease Agreement. It can be agreed that the tenant bears the costs of this.
3. Joint Inspection – In accordance with the Rental Housing Act the premises must be jointly inspected before occupation and a written document must be signed by both parties reflecting the defects. Failure to do so will prevent the Landlord from claiming any damages to the property after eviction or expiry of the Lease Agreement.
Once these three important steps are followed your tenant can move into the property.
The next important step is to manage a tenant correctly. Inspect the premises less than a month after the tenant moved in to ensure everything is in order.
If a tenant is a late payer it is important to stop this early. Being too forgiving in this respect can result in a tenant moving a landlord down the list of “important people to pay”.
What if things go wrong?
Is your tenant a week late with rent or did your tenant start a brothel or other unlawful business on your property? The next step is to immediately contact a property lawyer. There is no sense in leaving it till later or giving the tenant another month to pay. Our experience shows that the longer one waits to start legal action the longer it can take and the more damages are suffered.
A less forgiving (and smarter) landlord will often result in a non-paying tenant moving out before legal action becomes necessary.
What will the attorney do?
The attorney should first cancel the lease agreement by giving notice to the tenant following the breach clause of the lease agreement. This letter follows a similar form to a letter of demand.
If no response is received the attorney should start the eviction and recovery of rental process. This is a two-pronged and parallel procedure, which means the attorney will both issue summons (action) for arrear rental and evict (application), most often in the Magistrates Court.
Although the process is relatively expensive and frustrating, landlords will often realise that leaving a non-paying tenant in valued property can have much more costly and severe consequences.
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by Pieter Van Zyl – May 2016
Updated April 2021