Changing the locks, removing the front door to your property, sending “heavies” around to collect outstanding rental or to intimidate tenants into moving, cutting electricity and water, or telling tenants to move temporarily because you want to do urgent maintenance/renovations work are some of the more common strategies employed by landlords to get rid of tenants.
Landlords are not allowed to resort to creative ways to get rid of their tenants – by doing so, they only create ammunition for the tenants to delay the eviction process, which costs more time and money. Picture: African News Agency (ANA)
Most of the above are illegal – and will only land you in trouble as a landlord. But while it doesn’t mean that you don’t have a right to get rid of a troublesome tenant and not allow them to live at your expense, it does mean that you need to do so through a legal court process.
In recent weeks, numerous tenants have complained that their landlords were violating their human rights and seemingly getting away with it. The tenants, due to severe financial issues, had fallen behind on their rentals for a month or two, which is likely to put them in breach of their leases, but two wrongs don’t make a right.
B Khumalo, who lives in Honeydew in Johannesburg, wrote that he had arrived home after picking up his daughter from school, only to find the electricity to his unit had been disconnected. When he asked the caretaker, he was told the landlady had been in the complex and disconnected the electricity herself.
“To date, I have not received the court order that granted the landlord and/or Place de Tetre’s body corporate the right to disconnect electricity or any other services. My family has been subjected to inhumane living conditions since March15.
“We have suffered a huge loss in terms of the perishables that needed refrigeration, including my sickly daughter’s medicine that requires the fridge.”
In Pretoria, B Wentworth and his girlfriend are in a rental property in Val de Grace. Both were recently retrenched and fell behind in rent for two months. So on March8, the landlord sent workers to the property, who knocked down the boundary wall.
“When we asked why this was being done, we were told they wanted to build a better wall in about a day, and the old one was unsafe,” Wentworth said.
A week later, when there was still no wall, they asked about the new wall and were told “no rent, no wall’’.
“As a result of this our lives are in danger and items have been stolen out of our yard. We can’t even do our washing because of theft. Basically, we no longer have security lights (these were stolen) and our car is at risk.
“I know we owe money, but surely this must be wrong? Is there anything I can do, and what are my rights?”
Because the tenant owed the landlord just shy of R10200, the landlord knocked down a wall that probably cost around R1000 a metre.
“I know he is not running a charity but even our water has been cut off,” Wentworth says. Cutting off water is unconstitutional – only the council is permitted to do this, and when it does, there has to be a trickle of supply.
Resorting to creative methods to “smoke” out tenants is actually empowering them legally, because it gives tenants ammunition to delay an eviction.
This further strains the relationship, costs more time and money, and breaches numerous laws:
In terms of the Rental Housing Act (RHA), any person who unlawfully shuts off the utilities to a rental property is guilty of an offence and liable to a fine or imprisonment of up to two years, or to both fine and imprisonment.
A tenant may apply for a spoliation order or an interdict (if their electricity or water was cut off by the landlord, not council). Landlords may not cause electricity supply to be interrupted without a court order.
A spoliation order means that your peaceful possession of an item – in this case, a property – has been unduly disrupted. In essence, this is what happens when someone takes the law into their own hands. The court is likely to grant the order that supply be restored – and the landlord would be found in breach of the RHA.
Changing locks, cutting services or making a property inhabitable, as in Wentworth’s case, amounts to constructive eviction, which is illegal in terms of the RHA.
Being late with rent does not automatically mean the tenant is in breach of the lease agreement – the landlord must act in accordance with the terms of the “breach clause”. Typically, this means the tenant must be given written notice of the breach and given time to remedy the breach.
If the tenant doesn’t rectify the breach within a prescribed notice period, the landlord may cancel the lease agreement and give them 20 business days’ notice to vacate. If they don’t vacate and they’ve been given written notice, they may be considered in illegal occupation – and the eviction process can begin.
For landlords, going the legal route is an expense – they’re already out of pocket and now, to get rid of a problem tenant, they need to incur even more costs. Yet, it’s worth bearing in mind that the aim is to secure your asset, often worth millions of rand. And as part of the eviction order, the court might well grant a cost order against the tenant.
* Georgina Crouth is a consumer watchdog with serious bite. Write to her at email@example.com, tweet her @georginacrouth and follow her on Facebook.
**Simon Dippenaar & Associates Inc. (SDLAW) is a Cape Town law firm of specialised eviction lawyers with offices in Cape Town and now Gauteng and Kwazulu Natal, representing landlords and tenants locally and further afield. Contact a Cape Town Lawyer on +27 (0) 86 099 5146 or firstname.lastname@example.org, and one of our Cape Town Attorneys will call you right back.