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Do it right to avoid illegal eviction

23 Aug 2013

Once DIY landlords have bought their investment property or built additional accommodation on their premises, they are often eager to get tenants into their units quickly.

The law in South Africa provides more protection to tenants than before and it is not unsurprising that landlords often feel the current legislation enables tenants to get away with not paying rent or that it offers more protection to the tenant.

However, it has to be remembered that all the necessary checking processes must be done before signing a lease agreement with a tenant.

Lanice Steward, managing director of Knight Frank Anne Porter, says if the tenant later realises he can no longer afford the rent but does not want to vacate the property, the landlord will have a problem on his hands. 

The law in South Africa provides more protection to tenants than before and it is not unsurprising that landlords feel the current legislation enables tenants to get away with not paying rent or that it offers more protection to the tenant, she says.

Landlords can't simply change the locks or restrict access to the unit, as it is necessary for them to go through all the procedures as prescribed in the Prevention of Illegal Eviction (PIE) Act. This act aims to protect the tenant’s and landlord’s rights simultaneously, it prevents unlawful eviction but it also allows for legitimate eviction of unlawful tenants.

Steward says it is important to follow all the steps to make the eviction a legal one and avoid slip-ups later.

  1. Cancel the lease due to non-payment giving the required notice period as stated in the lease agreement.
  2. An application must be brought to court to get permission to initiate eviction procedures, and this is done by a sworn affidavit and two notices to this effect. The affidavit must allege that the tenant is occupying the unit illegally, the reason for the requested eviction and why it is just to evict the non-paying tenant.
  3. Once the application has been issued, the Sheriff of the Court will serve notice to the tenant, advising the municipality and the illegal occupant of the landlord’s intention to institute action. The local municipality and the occupant will have to be given 14 days’ notice of the hearing to take place.
  4. On the day of the hearing, the illegal occupant will have the opportunity to show cause as to why they should not be evicted and the court will only grant an eviction order after considering all the relevant circumstances.

“It must be kept in mind that PIE procedures are lengthy and, depending on the circumstances, it can be a long time before the occupant actually leaves the property." During this time the landlord will not receive an income from the rental and may still have to cover his bond as well as maintenance costs on the property.

Steward says this shows how important it is to go through a full checking process before allowing anyone to occupy your property. She advises DIY landlords to employ a rental agent because he or she will have access to all the necessary tools to do thorough rental track record, and income and affordability checks as part of the rental application.

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