In South Africa, landlords have a number of rights and remedies available when tenants fail to pay their rent or utilities. However, there are also strict legal restrictions.
READ: Rights and responsibilities in rental housing – know where you stand
Here is what landlords can and can’t do if a tenant does not pay their rent or utilities and what tenants can do if they are facing eviction.
What can’t landlords do?
As mentioned above, there are legal restrictions on what landlords can do if a tenant does not pay their rent or utilities. Landlords cannot:
- Lock tenants out of the property
- Change the locks on the property without providing the tenant with new keys
- Seize the tenant's goods without a court order
- Intimidate or threaten the tenant
- Obstruct the tenant's entry into the property
If a landlord does any of these things, they may be committing a crime.
What can landlords do?
If a tenant is late with their rent or utilities payments, the landlord or their agent should immediately contact them to find out why. If the tenant has a valid reason for not being able to pay, the landlord may be willing to work out a payment plan. However, if the tenant is simply refusing to pay or if they have a history of late payments, the landlord may take further action.
The first step is to send the tenant a written notice of breach, says Paul Stevens, CEO of Just Property. “This notice must be sent by registered mail, email, or personal delivery. The notice should state that the tenant is in breach of their lease agreement and that they have a certain period – usually 20 business days – to pay the outstanding rent. If the tenant fails to pay the rent within this time period, the landlord may cancel the lease agreement.”
Once the lease agreement has been cancelled, the tenant becomes an illegal occupant, and the landlord can apply to the court for an eviction order. If the court grants the eviction order, the sheriff will remove the tenant from the property.
“It is important to note that landlords are not allowed to take any steps to evict a tenant without first obtaining a court order,” Stevens adds. This means that landlords cannot lock tenants out, change the locks, or cut off their electricity or water supply.
“When a tenant fails to pay their rent or utilities, landlords should take prompt action to protect their interests. However, they should always seek legal advice before taking any steps to evict a tenant,” says Stevens.
He offers these tips for landlords:
- Keep a good record of all communications with your tenant, including rent receipts and notices. (If you are using a managing agent, they should do this for you.)
- Be aware of the tenant's rights and responsibilities under the Rental Housing Act.
- If the tenant fails to pay their rent, a written notice of breach is the first step.
- If the tenant still fails to pay their rent, you can apply to the court for an eviction order.
- Do not take any steps to evict the tenant without first obtaining a court order.
What can’t tenants do?
In addition to the rights and responsibilities of landlords, tenants also have a number of obligations under the Rental Housing Act. Tenants cannot:
- Fail to pay rent or utilities on time and in full without a valid reason.
- Damage the rental property or cause a nuisance to other tenants.
- Use the rental property for illegal purposes.
- Sublet the rental property without the landlord's consent.
- Make alterations to the rental property without the landlord's consent.
- Keep pets on the property without the landlord's consent.
- Allow other people to live on the property without the landlord's consent.
If a tenant breaches their obligations under the Rental Housing Act, the landlord may take legal action, which could include eviction.
What can tenants do?
"At Just Property, we believe that communication is key to a successful landlord-tenant relationship. If you as a tenant are facing financial difficulties or have any other concerns, please do not hesitate to contact your landlord or agent as soon as you can,” says Stevens. “As letting agents, we are here to help our tenants and landlords resolve any issues and find a solution that works for everyone."
If a tenant is facing eviction, they should immediately contact the Rental Housing Tribunal. The Rental Housing Tribunal is an independent body that resolves disputes between landlords and tenants, can provide tenants with advice and assistance, and can also mediate disputes.
If the Tribunal is unable to resolve the dispute, the tenant may need to apply to the court for an interdict. An interdict is a court order that prevents the landlord from taking certain actions, such as evicting the tenant or cutting off their electricity or water supply.
Stevens offers these tips for tenants:
- Keep a copy of your lease agreement and all other relevant documents, such as rent receipts and notices from your landlord/letting agent.
- Be aware of your rights and responsibilities under the Rental Housing Act.
- Pay your rent on time and in full.
- Keep the property in good condition.
- Communicate with your landlord/letting agent regularly and resolve any issues as soon as possible.
It is important that both landlords and tenants know their rights and responsibilities. Landlords have the right to expect tenants to pay their rent on time, but they must also follow the correct legal procedures if they want to evict a tenant. Tenants have the right to live in their rented property without fear of being evicted illegally, and they can seek assistance from the Rental Housing Tribunal if they are facing eviction.
READ: Landlords: A guide to finding the ideal rental candidates
Additional information:
The Rental Housing Tribunal has the authority to deal with disputes, complaints or problems between tenants and landlords in the rental housing dwellings:
Any practice unreasonably prejudicing the rights or interests of a tenant or a landowner - It may, amongst other things relate to:
- Illegal lockouts or illegal disconnection of services (water, electricity etc.)
- Failure to refund a deposit
- Damage to property
- Demolitions and conversions
- Illegal evictions (The Tribunal does not have jurisdiction to hear applications for
- eviction orders)
- Forced entry
- Non-compliance with house rules
- Harassment and intimidation
- Failure to issue receipts
- Unlawful seizure of tenants’ goods
- Prohibiting the establishment of tenants’ committee and tenants’ activities
- Termination of Municipal services
- Causing a nuisance
- Overcrowding and causing health hazards
- Exploitative rentals and determination of fair rentals
- Lack of maintenance and repairs
- Non-payment of rent
- Discrimination by landlord against prospective tenants
In terms of section 13(13) of the Rental Housing Act 50 of 1999, a ruling of the Tribunal is deemed to be an order of a Magistrate's Court in terms of the Magistrate's Court Act, 1994.
Additional information: Just Property shares five tips that will help you rate as a top tenant (read the article here)
So what should tenants do to stand out as the best choice for landlords?
According to Berry Everitt, CEO of the Chas Everitt International property group, who previously shared tips on what tenants should consider if they want to stand out as the best choice for landlords, tenants should take the time to ensure that their credit record is in really good shape, and will also stand up to scrutiny as far as their history of on-time payment is concerned. No landlord wants to have to repeatedly ask for payment or get it late every month.
READ: Buying or renting property: Who pays for what?
"Prospective tenants should also be able to provide good references from any previous landlords and compile all the information and paperwork they may need to complete a rental application before they start house hunting. This includes a list of previous addresses, their bank account details, ID document, employer information, and recent payslips.
"They should also have the funds immediately available to pay a deposit, usually equivalent to a full month’s rent, and any water and electricity supply connection fees that are required. If they have to wait for a previous landlord to return a deposit, before they can afford to pay a new landlord, they may well lose out."
READ: A step-by-step guide for first-time renters
In addition, while they should be very clear about their absolute “must haves” in a rental home - and what they really don’t want – they should try to be flexible on the rest of their criteria so that they can make a quick decision when necessary, he says.
What is a lease agreement?
A lease agreement is a legally binding contract between a landlord and a tenant that outlines the terms and conditions of the rental arrangement. A well-drafted lease agreement should cover all aspects of the tenancy, including rent, security deposit, maintenance responsibilities, and tenant obligations. It should also provide a framework for resolving disputes and terminating the tenancy.
Why does a landlord need a watertight lease agreement?
Having a proper lease agreement is essential for landlords for several reasons. Firstly, it helps to establish a clear understanding between the landlord and the tenant about their respective rights and obligations. This can help to prevent misunderstandings or disputes that may arise during the tenancy.
Secondly, a lease agreement can protect the landlord’s property by setting out guidelines for maintenance and repairs. This can help to ensure that the property is maintained in good condition and that any damages caused by the tenant are addressed promptly.
Thirdly, a lease agreement can provide a framework for resolving disputes that may arise during the tenancy. This can help to minimise the risk of costly and time-consuming legal proceedings.
Fourthly, a lease agreement can help to protect the landlord’s financial interests by specifying the terms of rent payments, late fees, and security deposits. This can help to ensure that the landlord receives the rent on time and is adequately compensated for any damages or unpaid rent.
A sound lease agreement is essential
In summary, a well-drafted lease agreement is essential for landlords to protect themselves and their property. It provides a clear understanding of the terms and conditions of the arrangement, establishes guidelines for maintenance and repairs, provides a framework for resolving disputes, and protects the landlord’s financial interests.
Speak to a legal expert
As a landlord, it is important to seek the advice of a legal professional to ensure that your lease agreement complies with all relevant laws and regulations, and is tailored to your specific circumstances.
Our attorneys have considerable legal experience with all matters related to tenants, landlords, lease agreements and dispute resolution. Please contact our Conveyancing and Property Law or Litigation and Dispute Resolution team to assist with your issue.
Author* Abrahams & Gross’s Litigation and Dispute Resolution attorney, Henno Bothma
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