Renting out a residential property is a great source of income, if managed correctly. But, even with the most stringent checks and approval processes, it’s still possible to end up with a bad tenant.
It is important to note that the Regulations dealing with evictions, demolitions and rental housing remain unchanged from Alert Level 3 - despite South Africa moving to Alert Level 1 at the beginning of March 2021.
A reader whose name is known to Property24 contacted us to find out about the legalities of issuing an eviction order.
"I stayed with my boyfriend for 19 years in the house that I bought through the bank, which I am still paying the bond for."
She and her boyfriend however decided to split up about a year ago. Despite the break up, she agreed to allow him to rent her house. While she says she only had a verbal lease agreement, things went more awry when the former partner started lapsing on his payments.
"In February he paid nothing and he said his co-tenant did not pay the rental. I had to pay the bond, levy and other house expenses from my pocket, while he is staying in the house with his co-tenant," says the reader.
The agreed monthly rental for the house was R6 000. "On March 1st he paid R3 000 without saying anything. I said to him I think I will have to manage my house now as I am tired of arguing every month when I am expecting the rental," she says.
The reader says his last words when a managing agent was sent to assist by drafting a contract with him was "tell the owner to issue me with an eviction order".
It is important to note that the Regulations dealing with evictions, demolitions and rental housing remain unchanged from Alert Level 3 - despite South Africa moving to Alert level 1 at the beginning of March 2021.
'No evictions allowed, unless ordered by a court'
According to TPN Credit Bureau, this means that a person may still not be evicted for the duration of the National State of Disaster unless a competent court has granted an order authorising the eviction from or demolition of a home. An eviction order may be suspended by the courts, unless it is not fair and just to do so.
"We can confirm that evictions are being granted by the courts but that delays in the proceedings are common. This is due to the court rolls being exceptionally full and the added scrutiny required to determine if it is just and equitable to award an eviction order."
Change to the Unfair Practise Regulations
TPN states that the Rental Housing Unfair Practice Regulations have been amended to include the failure of a landlord or tenant to engage reasonably and in good faith to make arrangements to cater for the demands of the national state of disaster to be considered as an unfair practice.
"This means that negotiations made in good faith prior to an eviction is a must. In practical terms this translates to engaging with all the role players. Settlement is a much more advantageous outcome than eviction will ever be!"
'Don't take the law into your own hands'
Property Law experts Marlon Shevelew adds that "cases such as the one posed here are quite common".
"They are often stories of relationships gone sour and petty disputes. For this reason it is of crucial importance to obtain legal advice and to let a legal professional handle the matters. They know how best to deal with each eventuality, as they have likely done so countless times before, and can assess each case objectively.
"Having said that, the present situation is at its core quite simple," says Shevelew.
"The tenant is in breach of the lease as he has failed to pay rental. The landlord is entitled to cancel the lease and sue for arrear rental. The landlord is also, once the agreement has been cancelled, entitled to apply for an order evicting the tenant. The landlord should refrain from taking the law into her own hands, as this is unlawful, and will not assist the landlord in the long term.
'Reasons to evict'
“The eviction process is time-consuming and needs to be done according to the letter of the law, if the landlord doesn’t want to face some sort of legal action further down the line,” says Bruce Swain, MD of Leapfrog Property Group previously told Property24.
“Essentially there are three instances in which an eviction becomes necessary, and legal. When a tenant damages the property, defaults on rent or uses the property for anything other than what was agreed to in the rental contract,” says Swain.
While it can be tempting to change the locks, this will be seen as an unlawful eviction as a landlord is not empowered to evict tenants themselves – the proper procedure must be followed.
NGL Attorneys also emphasises that the reason for the eviction has to be valid under PIE, the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, which was promulgated ostensibly to prevent arbitrary evictions.
“PIE sets out guidelines on the eviction process, which must be adhered to,” says Swain.
The more detailed the rental contract, the easier it is to follow through with the eviction. If this is a normal eviction, the following basic steps need to be adhered to:
The basics of a standard eviction - when SA is not under a National State of Disaster
- The first step to take is to cancel the lease contract with the tenant, explaining why the contract is being terminated. It’s also important to note that section 14 the Consumer Protection Act 68 of 2008 (CPA) stipulates that the landlord must give the tenant a minimum of 20 business days’ notice to rectify the breach of contract before the agreement can be terminated.
- It is important to determine at the outset whether the CPA applies to the lease at hand, and further whether section 14 applies. Section 14 will not apply to leases where both the landlord and tenant are juristic persons. And the CPA in its entirety will not apply to leases where the tenant is a juristic person with an asset value/turnover in excess of two million rand.
- Once the lease has been cancelled, the tenant will be an unlawful occupier in terms of PIE, and if they refuse to vacate the property, an order evicting them will have to be obtained.
- The landlord can then launch an eviction application in either a Magistrate’s court or the High Court to obtain an ejectment order. The court will expect proof that the termination was valid and properly enacted. If the application is not opposed, this could take as long as eight to ten weeks to be approved.
- The tenant will be notified of the eviction order and be allowed to make their case. It is possible that the tenant will dispute the reasons for the cancellation of the lease, in which event a court case can ensue.
Kwandokuhle Ncube, Candidate Attorney at Ramushu Mashile Twala Inc, explains that it is important to send this court application to the occupant and the municipality in time because the PIE Act states that they must receive it no less than 14 days before the date on which the parties to the application must be back in court.
- In many cases it is standard practice to provide the tenant with one month during which to find alternative accommodation before the sheriff will be lawfully entitled to evict the tenant.
The importance of the rental contract
“I cannot stress the importance of providing a sound rental contract, as well as clearly stating and documenting the evidence for a cancellation of a lease,” says Swain.
“The eviction process is already costly, and a lack of due diligence will not only drag out a very unpleasant situation, but can very well lead to a rejection of the eviction order or a lengthy and expensive court case.”
In this regard careful note should be taken of the interpretation of PIE set out in Cape Killarney Property Investments (Pty) Ltd v Mahamba and others 2001 (4) SA 1222 (SCA). The court interprets the peremptory requirements of inter alia section 4 of PIE; if these are not complied with the application will inevitably fail.
*This article has been updated to include the regulations related to Alert Level 1
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