eviction lawyer Archives

Dec 10

When and how to sue a tenant

By Eviction Lawyers South Africa | Eviction notice, Evictions, Lease Agreement, Rent, Rental Housing Act

Is it worth your while to sue your tenant for rent arrears or other costs?

To sue or not to sue for rent arrears and other costs? Know the pros and cons.

There are many ways in which a tenant can breach the terms of the lease, triggering the eviction process, but by far the most common is non-payment of rent. While you may succeed in evicting the non-paying tenant, eviction itself may not result in settlement of the outstanding debt. To recover your rental arrears, you may have to take to the courts and sue your tenant.

Why you might sue your tenant

Unpaid rent is the most obvious and the most common cause for litigation, but there are several other reasons why you might need to bring court action against your tenant or former tenant. Here is a fairly comprehensive list of grounds for a lawsuit, but there could be others.

Unpaid rent: By law, if your tenant fails to pay the rent on time, you must notify them of your intention to cancel the lease and give them 20 working days to rectify the breach. If they fail to do so, then you can apply to the court for an eviction notice. Remember only the Sheriff can evict a tenant. However, you can sue them for the unpaid rent.
Unpaid utility bills: If the tenant vacates the property, either via eviction or lease cancellation, any outstanding utility bills in the tenant’s name can be recovered. The first option is the security deposit. However, this may be inadequate to cover the amount owing.
Damage to the property: Inspection of the property at the beginning and end of the lease is a vital step you must not overlook. You will only be able to claim that a tenant has caused damage to your property if you have conducted a thorough inspection and compared the moving-out state with the condition of the unit on entry. If the tenant has indeed caused damage, you can deduct the cost from the security deposit. If this is insufficient (and it will be if there is also unpaid rent), you can take your tenant to court.
Unapproved alterations: The scope your tenant has for making alterations to the property will be dictated by the lease. However, any building alterations must be approved by you as the landlord. If the tenant has carried out work without your approval, you can sue the tenant for the cost of restoration.
Tenant owes more than security deposit amount: If, for any of the reasons above, the security deposit has been exhausted and you are still owed money, you can take to litigation to recover the rest.
Recovery of lost rent if your tenant does a flit: If your tenant moves out before expiry of the lease, you are entitled to any rent they failed to pay as well as the remaining rent due on the lease. This is effectively lost income to you and they have a legal obligation to honour the lease if they did not terminate it through the proper channels.
Cost of finding a new tenant: If your tenant moves out early without your agreement, you may need to find a new tenant urgently, if you rely on the income from the property. You may be able to claim compensation for the cost of advertising and credit checking new tenants.
Expenses incurred in storing or disposing of abandoned property: As discussed in Abandoned Personal Property: What Should a Landlord Do?, you cannot dispose of a tenant’s property immediately. Therefore, if you incur storage costs and/or ultimately have to pay for disposal, you can sue the tenant for this cost.
Tenant used the property for illegal activity: If you discover that your tenant used your property for an illegal activity, you can sue them to recover damages. However, unless the police have been involved, your suspicions may be difficult to prove.
Keeping a pet against the terms of the lease: If your lease stipulates “no pets”, but the tenant has kept an animal on the property, you can sue for damages (this is a breach of the lease agreement) as well as for any damage actually caused by the pet (dirty walls, stained carpets, etc.). As above, the security deposit may cover the damage; then again it may not. But you will need proof, e.g. photographs of the pet. It may be difficult to claim that a dog caused a stain if you do not have evidence of a pet on the premises.
Any other breaches of the lease: If the tenant has broken any other clause of the lease, resulting in financial loss or emotional or physical harm to you, you may need to claim compensation through the courts.

Possible benefits

Lawsuits are expensive, time-consuming, and stressful. If there is any other option for recovering money you are owed, a good eviction lawyer will usually advise you not to sue. However, there are potential positive outcomes from litigation that are worth bearing in mind.

Firstly, it is sometimes sufficient to threaten to sue. Often, on receipt of a court summons, the respondent will suddenly become very willing to negotiate and you will wind up settling out of court. They may know they will lose, or they may just want to keep their name off the court records. Their negotiation may seek a compromise and you may not succeed in recovering all your costs, but this may be a price worth paying to bring the matter to a close and avoid the hassle of a court case.
On the other hand, sometimes taking a tenant to court is the only way to recover your money, particularly where there is a dispute over damages. Without the force of the law, it may be difficult ever to see the money owed to you. In the case of damages, the entry and exit inspection reports, with photos, are essential to your case.
You may also wish to claim for additional damages. For example, in the case of #6 above, where a tenant vacates the property before the expiry of the lease, you can sue them for the rent remaining on the lease and possibly the cost of finding a new tenant.
If there is a risk that your tenant may malign your reputation as a landlord, even if you have acted entirely within the law, suing your tenant and winning is legal proof of your upstanding position.
Finally, your case against a trouble-making tenant will be on the record, should they ever try to sue you in future. A successful lawsuit is evidence that you have followed proper procedures and upheld all the laws regarding rental housing.

Risks

Of course, no action is without risk. We’ve outlined the benefits of litigation, but you should be aware of the risks as well.

Obviously, you might not win! Even if you feel you are in the right, there is no guarantee that you will win. Of course, a good eviction attorney will make sure you are fully prepared and have all your evidence in order, thus improving your odds. But it’s all down to the judge on the day.
Winning doesn’t automatically mean you will be paid. The tenant will have a court judgment against them, but collecting the money is another matter!
Litigation is costly, whether you win or lose. There is the court fee to pay, and the cost of an eviction attorney. You could represent yourself, but your chance of success is much greater with expert legal representation.
This is less likely, but you might provoke your tenant into a countersuit. If you lose, you might wind up having to pay out money to your tenant in court costs and legal fees. Again, if you engage the services of an experienced eviction lawyer, this is unlikely, but you should be aware of the risk.

Let Cape Town eviction lawyers help

If your tenants have left you high and dry and you need to recover money owed to you, either through the courts or out of court, contact Eviction Lawyer Cape Town, now also in Johannesburg and Durban. We are experts in eviction law and will ensure that you follow the proper procedures. We have an excellent track record in helping landlords and, with us on your side, the probability of getting your money back is excellent. Call Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za for a confidential discussion today.

Help, my eviction date is tomorrow and I don’t know what to do!

By Eviction Lawyers South Africa | Eviction news, Eviction notice, Eviction orders, Evictions

If you don’t prepare, you might find yourself and your belongings on the street

This article is reprinted with permission from GroundUp, written by Shaun Russell, 06 December 2019. If you have been served with an eviction order and your eviction date is tomorrow (or soon), be prepared to move or face seeing your belongings on the street. This article tells you how to prepare.

Many people don’t do anything to prepare for an eviction, thinking that if they simply refuse to move, they cannot be evicted.

But if you have received an eviction order from the court and have not made an official appeal through a lawyer, then there isn’t much you can do to stop your eviction. The Sheriff of the court is legally allowed, and in fact obliged, to remove you from your home and the police can help the Sheriff physically remove you and all your belongings. People who do not prepare for their eviction can often find themselves and their belongings out on the street.

If your eviction date is very soon or has passed then you need to do the following:

Phone the Sheriff

If your eviction date has passed, phone the Sheriff to see if there is a warrant of ejectment yet. The Sheriff cannot remove you from your home without a warrant of ejectment. The Sheriff must go to court to obtain this warrant. If your eviction date has passed and you are still in the property, you can phone the Sheriff’s office and ask if they have the warrant of ejectment yet. You can also ask the Sheriff what day they are likely to come and evict you. The more you know, the better prepared you can be. If anyone comes without a warrant of ejectment. you cannot be forced to move. If someone without a warrant tries to forcefully remove you, you must call the police.

Store your belongings

Pack the most important things into a bag that you can carry. This includes things like ID books, passports, money, some clothing, and any other important documents or items that you will struggle to replace. Then you need to find a place for your other belongings, such as furniture and household items. Friends and family are the first people to ask, but if this is not possible, then you may need to pay for storage. The Sheriff’s office can take your stuff and store it, but you will be forced to pay a fee for the storage, otherwise your stuff will be put outside on the pavement.

Learn more about how the Sheriff executes an eviction here.

Look for alternative accommodation

This is often easier said than done. Again, friends and family are a good place to start. If this is not an option, then you will have to pay to stay in a short term rental place like a hotel or in someone’s home, or go to a shelter. Unfortunately, when you don’t have a lot of time, your options are very limited. You should look at this accommodation as temporary and when you do find a short term place to stay, you need to keep looking for longer-term options immediately.

According to the law, your local municipality has to provide you with alternative accommodation if being evicted will make you homeless. Go to your local housing office and tell them that you have no other options and that you need emergency housing.

See a list of shelters in the Western Cape here. See a list of Cape Town housing offices here.

Speak to a lawyer about an appeal

If you feel that your eviction was unlawful, you should speak to a lawyer to get an opinion on making an appeal. Legal Aid and other law clinics are only likely to take your case if they think there is a good chance that you were unlawfully evicted. If you weren’t paying rent, and there wasn’t a very good legal reason for this, then it is unlikely they will help you make an appeal.

To learn more about tenants rights and opposing an eviction visit the new Eviction Website Blog.

The author is the Evictions Project Manager for OpenUp. This information sheet is produced by OpenUp and first published on GroundUp. This is the third in a series. Read the second one here.

Do you need help?

If you have been served with an eviction notice and need the services of an eviction attorney to help you appeal, contact Eviction Lawyer Cape Town, now also in Johannesburg and Durban. Call Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za for a confidential discussion today.

Dec 07

Month-to-month lease – how do you cancel?

By Eviction Lawyers South Africa | Eviction notice, Evictions, Lease Agreement, Rental Housing Act

Quick answers about month-to-month lease notice

How much notice is needed to end a month-to-month lease in South Africa?
For a periodic or month-to-month residential lease, the usual rule is at least one month’s written notice by either party, unless the lease requires a longer lawful notice period. If the lease has rolled over after a fixed term, the earlier lease terms usually continue, except that the tenancy is now periodic.

Is 20 business days always required?
No. The 20-business-day rule in section 14 of the Consumer Protection Act is tied to fixed-term consumer agreements and certain cancellation-after-breach situations where the CPA applies. It should not be treated as the universal rule for ending every month-to-month lease.

Does notice to terminate evict the tenant?
No. Notice may end or cancel the lease, but it does not physically remove a tenant or occupier from the home. If the occupier remains after lawful termination, the landlord still needs the correct eviction process and a court order.

What does month-to-month mean?
A month-to-month lease is a periodic residential lease that continues from month to month until either party gives proper written notice. It often happens when a fixed-term lease expires, the tenant stays on with the landlord’s consent, and no new written lease is signed. The previous lease terms usually continue, but the duration becomes periodic rather than fixed.

Must a tenant or landlord give two or three months’ notice?
Not automatically. The Rental Housing Act baseline for a periodic lease is at least one month’s written notice where the Act’s rollover rule applies. A longer lawful notice period may come from the lease or a later agreement, so the first step is to check the written lease and the facts. A demand for two or three months’ notice should not be assumed to apply merely because the lease is month-to-month.

Month-to-month leases are governed slightly differently from fixed-term leases

There are multiple reasons why a tenant might have a month-to-month lease. The most common scenario is when the fixed-term lease has expired and the tenant remains in the property. According to the Rental Housing Act, if no renewal has been requested by either party and no notice to quit the premises given by the landlord, the lease automatically rolls over into a month-to-month lease on the same terms and conditions as the expired fixed-term lease. The landlord and tenant may have had a conversation and agreed this arrangement verbally, possibly because the tenant is awaiting a moving-in date to a new home or is unsure of future plans. They may have applied for a job in another town and are waiting on the outcome. In these situations, a new fixed-term lease might not be appropriate.

The converse may also apply: a tenant is new to the area, having relocated for work, and is looking for a home to purchase or a suitable long-term rental, and in the short term just needs temporary accommodation, but cannot be certain of the duration. In this case, a month-to-month lease would be a useful option.

What then happens when either party wishes to terminate the agreement? Section 14 of the Consumer Protection Act (CPA), normally takes precedence over the Rental Housing Act, but does not apply to month-to-month leases.

What the Rental Housing Act says

As stated above, if the tenant occupies the property after expiry of the lease, the tenancy agreement continues as it was, except that the duration of the lease becomes one month. In other words it is now a month-to-month lease. In this case, the notice period for cancellation by either party is one month. However, this does not apply to cancellation due to breach of the lease agreement (e.g. non-payment of rent). Remember, even if no written lease is drawn up detailing the month-to-month arrangement, the terms and conditions of the earlier lease still apply, and therefore any breach of those conditions is legitimate grounds for a landlord to cancel the lease.

Month-to-month, fixed-term and breach: do not mix the rules

Three different questions are often confused. A fixed-term lease has an agreed end date and may trigger CPA section 14 rules where the CPA applies. A month-to-month or periodic lease continues until either party gives proper written notice. A breach, such as unpaid rent, may require a notice to remedy before cancellation, depending on the lease, the CPA, and the facts.

This distinction matters because the wrong notice can delay the matter. A landlord should not assume that a short breach notice is enough to end a month-to-month tenancy, and a tenant should not assume that leaving without proper notice has no consequences.

What the CPA says

The CPA, more specifically section 14, deals with the expiry and renewal of fixed-term consumer agreements. Where it applies to a fixed-term lease, a tenant may cancel on 20 business days’ written notice, and a landlord may cancel only after giving the tenant 20 business days’ written notice to remedy a material failure. A month-to-month lease is not itself a fixed-term lease, so the 20-business-day rule should not be treated as the blanket rule for ending every month-to-month arrangement. If there is a breach, the safest approach is to check the lease, the CPA, and the facts before cancellation or eviction steps begin.

If the tenant wishes to end a month-to-month lease, they should give proper written notice in line with the periodic lease, usually at least one calendar month’s notice unless the lease provides for a longer lawful period. If the tenant leaves without proper notice, the landlord may have a claim for rent or losses for the notice period, subject to the lease, mitigation, and the facts.

If the tenant is cancelling a fixed-term lease before its expiry, the CPA may be relevant. Section 14 allows a consumer to cancel a fixed-term consumer agreement on 20 business days’ written notice, subject to amounts owed and any reasonable cancellation charge where permitted. That is a different situation from simply ending a month-to-month lease.

One month vs. one calendar month

Remember that a month’s termination means from the beginning to the end of the same month, or what is commonly known as a calendar month. Therefore if it is the third of January and the landlord wishes to terminate the agreement, the termination would only apply at the end of the following month, i.e. the end of February, and not the end of January. This is so a full month can elapse and the termination takes effect at the end of a month.

Notice is not the same as eviction

A notice to terminate a month-to-month lease is the first legal step, not the final one. If the tenant or occupier does not leave after lawful termination, the landlord should not change locks, remove belongings, cut utilities, or use intimidation. Those steps can turn a lease dispute into an illegal eviction in South Africa.

Once occupation is no longer lawful and the occupier remains in the home, the landlord must use the correct eviction process. PIE requires court supervision before a person can be evicted from their home.

If your question is about drafting a lease rather than ending one, see SD Law’s lease agreement template. This page deals with cancelling or terminating a month-to-month arrangement, not creating a lease template.

Let eviction attorneys help

SD Law is a firm of Cape Town lawyers who know rental housing law inside and out. We look after the interests of both landlords and tenants. Our priority is upholding the law and ensuring everyone’s rights are protected. If you have a question regarding your month-to-month lease, or any other aspect of rental housing legislation, contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za for a confidential discussion.

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