Why can you legally evict a tenant?
As a landlord, you have a responsibility to your tenants. Your property may be an income-earning asset to you, but you must never lose sight of the fact that, to your tenants, it is home. Evicting a tenant is not an action you should enter into lightly, not least because it could cost you a considerable amount, both in legal costs and in lost income, should it take you a while to find another tenant. Unfortunately, sometimes the contract between landlord and tenant becomes strained. If you are unhappy with your tenants, there is a process to follow. But first you must have a legitimate reason for seeking an eviction order. What are the legal reasons for eviction?
Breach of lease agreement
The rental agreement, or lease, lists the terms and conditions of the tenancy. It provides protection to both landlord and tenant in the event of either party failing to fulfil their contractual obligations. Basically, any breach of the lease agreement by the tenant is a legitimate reason for you to cancel the lease. At this point it is very important that you understand the difference between cancelling the lease and evicting a tenant. Eviction is a legal process that is carried out via court order and the intervention of the sheriff (if necessary). Eviction is not in the hands of the landlord. See Eviction – how does it work? for an explanation of the proper procedure. Your lease should have a clause in it detailing the consequences of breaching any of the terms of the lease. What constitutes a breach? There are several circumstances.
Rental arrears
The most common breach is non-payment of rent. It is up to you how much leniency you wish to exhibit. If a tenant is a day or two late with the rent one month and they are otherwise a good tenant, it may be that the bank has made a mistake or some other human error has occurred. Tenants often set up debit orders to go out on the 29th of the month, to ensure the landlord receives the rent by the first of the following month. February always causes problems! Give your tenant a call and let them know you haven’t received the rent; this usually sorts the matter. If the rent is still not paid, or if you have experienced repeated incidents of this nature with no explanation and the rent is now in arrears, your tenant is in breach of the lease agreement. You are legally entitled to start eviction proceedings.
Illegal activities
If you discover that your tenant is engaging in criminal behaviour, this is a reason to start the eviction process. This might involve harbouring and/or selling stolen goods; dealing drugs, including cannabis (remember possession of cannabis is legal for personal use, but selling it is not); or using the premises for sex work (whatever your views one way or the other, sex work is still illegal in South Africa). The difficulty comes in proving your suspicions. You cannot claim a breach of the lease on a hunch. But don’t take the law into your own hands. If you have reason to suspect a crime is being committed, report it to the police and let them handle it. Only once you are certain your tenant is carrying out illegal activities may you begin the eviction process.
End of the lease agreement
Most lease agreements run for one year, occasionally two years, less commonly six months. At the end of the lease period, there is usually an option to renew, but it is not compulsory that you extend the lease. You may have decided to sell the property or move back in. If your tenant continues to occupy the property after the lease has expired or been terminated, and you have given notice according to the lease agreement and legislation, the tenant is now an illegal occupier and is required to vacate the property. If they don’t leave of their own accord, you may have to go to court to start the eviction process.
Violation of the lease terms and condition
If your tenant is in violation of the terms you have agreed other than rent, this constitutes a breach of the lease agreement, just as non-payment of rent does. The same process should be followed. In the first instance, speak to the tenant informally about your concerns and ask them to rectify the matter. If this does not work, send a letter notifying them that they are in breach and giving them a time frame (determined by legislation) to put things right. If they fail to do so, you are entitled to start the eviction process. Violations include pets on the property when the lease does not allow pets; excessive noise (i.e., nuisance complaints); unauthorised or excessive numbers of occupants (i.e., the property is being used as a commune when the lease specifies a maximum of e.g. four inhabitants; subletting without permission, or use of the property for purposes other than indicated in the lease (i.e., running a retail business from a non-commercial property).
Health and safety issues
It’s unusual, but occasionally tenants violate health and safety rules, putting themselves and neighbours at risk. A case arose a few years ago of a mushroom farm whose compost was causing such noxious odours that neighbours took the farm to court (see Nuisance law – when an odour mushrooms out of control). In this case, the farm was owned and not rented and the court case involved nuisance law rather than eviction. Had the offenders been tenants, the landlords would also have had a case against them.
Property damage
Most leases have a clause about the respective responsibilities of landlord and tenant, usually divided between maintaining the fabric of the building, which is the owner’s responsibility, and keeping the property generally clean and well maintained, which is the tenant’s duty. If the occupant is negligent and fails to reasonably maintain the property or advise the owner of structural problems, the landlord can seek eviction. For example, if the roof is leaking and water ingress is causing damage to walls, and the tenant does not notify the landlord, this is neglect. If the tenant accidentally or willfully breaks fixtures and does not repair them, this is damage. The damage must be significant for there to be grounds for eviction, and there must be evidence (i.e., photos).
Eviction procedure
Before undertaking a formal eviction process, you must send notice to the tenant informing them of the breach of the lease agreement, with specific reference to the clause they have violated. Give your tenant a reasonable chance to put things right (see Letter of demand). Inform them that only if no action is taken in that time will you cancel the lease. We can draft the letter and send it on your behalf. Many tenants will take a lawyer’s letter more seriously than one from the landlord alone.
Contact us
At Simon Dippenaar & Associates we are specialists in property law. We know rental housing legislation and the Consumer Protection Act inside out and we act for both landlords and tenants, so we know the challenges faced by both parties. Contact one of our eviction attorneys on 086 099 5146 or simon@sdlaw.co.za if you need advice on letters of demand or the eviction process.
