Throwing your tenant out – literally!

02 Sep 2011

A Property24 reader says:

 

I got so fed up with my tenant for not paying his rental for the last 2 months that I entered the premises with my locksmith and changed all the locks. My tenant is due back from work in 2 hours time and under no circumstances whatsoever will I reopen the premises for him!

Alan Levy, an attorney at Alan Levy Attorneys who specialises in evictions, rent recoupment and landlord / tenant law replies:

In this case the landlord should have contacted his attorney for advice before even contemplating steps such as those that were taken.

The procedure that should have been followed is outlined in the Prevention of Illegal Eviction and Occupation of Land Act 19 of 1998 (“the PIE Act”) as interpreted by our courts. This procedure all going well is as follows:

Step 1 – an Application for Eviction needs to be issued out of either a High Court or Magistrate’s Court asking for the eviction of the Tenant. The Application contains a short affidavit and annexures such as the lease agreement.

Step 2 – the Application is served upon the Municipality and upon the Tenant.

Step 3 – the Tenant has 5 business days to oppose the Application. In most cases this is not done. After the lapse of the 5 days, an Ex Parte Application (an application to court without giving notice to the Tenant) is brought immediately and the Court orders as to how the requisite Notice in terms of the PIE Act is to be served.

Step 4 – the Court Order and the Pie Notice are then served upon the Tenant and the Municipality.

Step 5 – 14 days then lapse in terms of the PIE Act.

Step 6 – the matter is then heard by the Court and an eviction order is granted.

The eviction order can order the Tenant to be evicted immediately but ordinarily grants the Tenant 30 days to vacate the Premises, failing which the Sheriff of the Court can evict him.

The legal way is always the better way!

The views herein are not intended to be and should not be construed as legal advice. If legal advice is required, a suitably qualified attorney should be consulted.

Readers' Comments Have a comment about this article? Email us now.

What a lot of nonsence!! As a landlord myself I have changed locks in the past, and it works. If the tenant haven’t got money to pay you he wont have money to pay the lawyer as well to defend him. The process takes to long and that means he will have 4 months free rent!! - Stefan  

Who pays for all this. 2 months not rental income, bonds and expenses and then who pay the court? Not the broke tenant who should not have moved into an premises he/she can't afford in the first place. Where and when does the owner get compensation for lost income and additional cost? - Roche Enslin

I agree fully with what the Landlord done, I’m in the same business and had to do the exact same, we as landlords must follow the law but what about the tenant they can do as they please, I packed all my tenants stuff and left it under the car port. While waiting for the court to decide on the eviction, who must cough up the funds to pay the water electricity, rates and taxes and in some instances the bond. So Mr. Alan Levy attorneys until you find yourself in the same situation then we will see what you will do as the legal way can take up to 2 years. - Kevin Kirkwood

Ohh goodness no. As a landlady I am not going to try and squeeze blood out of a rock. I'm throwing more money at this problem, after being inconvenienced by my tenant. I find it unbelievable that the tenant didn't know he was going to be unable to pay the rent! Almost always the tenant knows but doesn't care to consider how this will financially inconvenience you. - Zee

If you find tenants a hassle, then don't go into Buy to Let, but rather invest in Property Unit Trusts. - Stephen

 This is a clear view on how the law protects these vultures.
At no point, will you as an owner ever recover your substantial legal expenses or for that matter the damages done to your house – nor, might I add, the unpaid rent or even, god forbid, the arrears electricity or water monies.
I got caught in the same trap. Turns out, the man was a professional liar, and was guilty of the same crime (yes crime) all over Gauteng.  Here is the kicker. If they knowingly sign a lease and have no intention of ever paying for rent, it’s fraud.
Owners have zero rights in cases like this, and I can very definitely empathise with a owner who is desperate enough to lock the tenant out. I resorted to harassment, and would wake my tenant up at 2am when I delivered his most recent legal correspondence.
The law is an ass. - Sarah Stanton

Advice provided is typical of an attorney!!! Keep the landlord in limbo while charging more legal fees. I went this route, cost me r40,000 in lost rental etc., every time the sheriff went to the property the tenant claimed not to be the person that was to be evicted!! Took me another 3 months before i changed the locks and did the deed myself!!! Only to find down the road that all the electricity and water charges had not been paid so I was liable for those as well. Council had disconnected the electrical supply several times, no problem, her boyfriend opened the d.b. And re-connected it!! Not once but 3 times!!No follow-up by council and no prosecution either. I can almost guarantee that now that you have you have changed the locks, they will be only too glad to vacate. PS: in future leases add this clause to your lease docs. 1) rent overdue by 48 hours, landlord has the right to move all furniture to the pavement, either inside or outside the complex and if anything is stolen / damaged no action can be taken against the landlord!! Tenant to sign acknowledgement of this clause! It works like a charm! Make them aware of it upfront and have them sign another clause that they waive all legal rights in this regard to prosecuting you, should you have to take this action!! - Peter

The advice given fails to indicate to the Landlord that his actions constitutes an offence in terms of the Rental Housing Act.  The Rental Tribunal was established to attend to matters such as this one and Section 4 of the Act provides that the Tenant has the right to privacy and that the Landlord may not enter the premises without first giving notice to the Tenant of his intention to do so. Thus we have two separate acts by the Landlord which are in direct violation of the Rental Housing Act. If I were the attorney of the Tenant I would advice him/her to approach the Rental Tribunal and lay a complaint against the Landlord. The Landlord here needs to note that the Rental Tribunal, under certain circumstances, may be authorized to impose a fine or imprisonment of 2 years for contravention of the Rental Tribunal Act and Regulations. The correct procedure to be followed was correctly set out but I do feel that emphasis should be placed on what the consequences of the Landlord’s action under the circumstances are. - Antonio

It appears that most of the respondents to this article do not have knowledge of the law. Why leave it for two months and then take an illegal step. Read and understand the Rental Housing Act . There is protection for both the tenant and owner. Most cost effect way of dealing with issues relating to renting apply for help at the Housing Rental Tribunal.
Insertion of clauses of eviction in event of failure to pay rent also illegal in terms of Rental Housing act
The following constitute unfair practice by both tenant and landlord
- the changing of locks;
- deposits;
- damage to property;
- demolitions and conversions;
- eviction;
- forced entry and obstruction of entry;
- House Rules, subject to the provisions of the Sectional Titles Act, 1986 (Act No. 95 of 1986), where applicable;
- intimidation;
- issuing of receipts;
- tenants committees;
- municipal services;
- nuisances;
- overcrowding and health matters;
- tenant activities;
- maintenance;
- reconstruction or refurbishment work. - March

I agree that the legal route does not work. A friend of mine has an alternative method: He pays two of his workers to move in together with the tenants. Therefore he is not doing anything against the law. Within
48 hours the tenants leave by free will. - D. Kemp 

The Advice provided is not very helpful nor correct and often takes far too long to address the problem, and on top of that is very expensive.
 I have done the exact same and changed the locks on my house after the Tenant was two months behind. I contacted my attorney and he advised me that I was within my rights and that there is a law that comes into play when the tenant does not get back to you to settle the arrears after the locks were changed.
I never denied the tenant access, but I advised him that he will not be allowed onto the premises to remove anything until he settles the outstanding rent. Only then will I allow him to take what is rightfully his.
The Law is called “Silent Hypothec of the Lessor”. The attorney assisted me to follow the due process and I ended up selling all the belongings to recover my loss.
Landlords are not Powerless !!!!! { Just Get PROPER legal advice.} - Pierre 

The advice given by "Peter" is the best! Re step 6 - "then heard by the Court" what a joke, 2 years later following legal route the case is still on the waiting list with no court date in sight, no rent, no utilities paid and let us not talk about the damages to the property or the Rental tribunal, tenant in this case was a professional. Legal route is a joke and waste of time and  money. My advice blacklist the person if you can, do not throw more good money after bad and take immediate action if rental is not paid, then follow Peter's advice! - Linda

By changing the locks, you are limiting the tenant from enjoying full and uninterupted use of the property which I think is a key factor according to the act. With one of my properties, i merely removed the door. He still has full access to the premesis, but then again, so does everyone else! - David

I had to go for 24month without any rental income, done the lawyer thing and all the correct legal stuff.  End result: Courts let you down and you wait forever!! - Anonymous

What is the costs involved in this procedure and who is liable for the costs, I hope the tenant will be kept liable! - Deon Aspeling

Deafults don’t only come about through tenants no longer being able to afford the rent. There are professional scammers who live rent free for years by moving around approximately every four months and excercising their “rights” and use lawyers to help them achieve this. And you can get into a lot of trouble changing locks etc.
Tip: make sure your prospective tenant is screened with ITC etc, and ask for details of the previous landlord so you can get a reference. And don’t be too desperate to let your property. If your property is unlet for a month or two, you have control over the financial loss. If you are ripped off by a scammer, you have no idea where this will end. - John Johnston

I believe in giving the tenant the benefit of the doubt for 1 week, that is it!
I have a clause in my lease agreement that allows me to carry out maintenance on anything I see fit, as long as I give him 24 hours notice.
I normally pitch up and remove the front door and the front gate and take them back to the workshop for maintenance (sand blasting and painting). I normally do this at 08:00 in the morning. You will be surprised how often I get a visit from the tenant at the workshop carrying cash their hands. - Frank Louw 

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