eviction process Archives | Eviction Lawyers South Africa

How to evict non-paying tenants

By | Evictions, Rent, Tenants

Evicting a non-paying tenant is a legal matter that should be handled to avoid incurring losses. This is how an eviction can be done.

Reprinted from citizen.co.za, by Kayla Ferguson – 2024-01-23

While it can be a lengthy process to evict tenants who fail to pay their rent, there are procedures in place to make sure that both the tenants’ and the landlords’ rights are protected. Following the necessary steps is key to a hassle-free eviction process.

Legal provisions

Adrian Goslett, Regional Director and CEO of RE/MAX of Southern Africa explains that both the tenant and the landlord must play fair with respect to their rental agreement.

“It is crucial to abide by the contractual agreements and, if not, to then proceed with the required legal procedures stipulated in this regard. It is only when people deviate from this that issues start to occur,” he notes.

Tenants are protected by two pieces of legislation, namely: the Prevention of Illegal Eviction from Unlawful Occupation of Land Act, No. 19 of 1998 (PIE Act), and the Rental Housing Act of 1999 (RHAct) as amended. The first sets out the process for evicting tenants, and the second makes it a criminal offence for a landlord to simply cut the supply of electricity or water, change the locks, confiscate tenants’ belongings, or stop a tenant from having access to the property.

“It is vital to always play by the rules. While you might think you can get a non-paying tenant out quicker if you change the locks or defer to other intimidation tactics, the truth is that this will most likely only provide the tenant with ammunition to use against you in the court proceedings. This will only drag things out further and cause more unnecessary complications and delays,” says Goslett.

Although it might be forgivable for the odd late payment if it’s a bank or financial system-related problem, a landlord cannot be so lenient if their tenant gets into the habit of paying their rent late.

How to go about the eviction

“Because the monthly payment date forms part of the rental agreement – which must also comply with the Consumer Protection Act – when a tenant doesn’t pay on time, they are technically in breach of contract. Legally, this means that a landlord should send the tenant a formal letter explaining that they have 20 business days to make the payment, and if they don’t pay their rent in that time, their lease will be cancelled,” Goslett explains.

If the tenant fails to pay what is due within the stipulated timeframe, the landlord can legally terminate the lease and ask them to leave. If the tenant refuses, the landlord can then take out a court order to evict the tenant for breach of contract.

“This process can take up to six months, during which your tenant can stay in your property and will probably still not pay rent. Once the eviction is granted, the tenant is usually given at least another 14 days to find new accommodation before the eviction order is executed,” says Goslett.

Because the eviction process can be so lengthy, Goslett suggests taking steps as soon as possible to prevent too great a loss of income. “The longer you take to act on a late or missed payment, the longer it will be before you can legally evict a tenant who continues to miss payments.”

To guard against this, landlords are encouraged to work with a professional RE/MAX rental agent who can thoroughly screen potential tenants and minimise the risk of late or missed payments.

“It can be tempting to go it alone in the mistaken belief that handling the property rental yourself will save you money. Also, when we’ve found the perfect tenant, it’s impossible to think that something might go wrong – until it does. It is better to get expert help from the very beginning than to try and navigate these challenges on your own,” Goslett concludes.

For more information on evicting a non-paying tenant

Simon Dippenaar & Associates, Inc. is a law firm of specialist eviction lawyers in Cape Town, Johannesburg and Durban. We help landlords and tenants maintain healthy working relationships. Contact one of our eviction attorneys on 086 099 5146 or simon@sdlaw.co.za if you need help evicting a non-paying tenant.

Further reading:

Legal reasons you can evict a tenant

Legal reasons for eviction

By | Eviction notice, Evictions, PIE, Tenants

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.

The Right Letter of Demand

Letter of demand

By | Lease Agreement, PIE, Rent, Rental Housing Act, Tenants

How to ensure the correct documentation with defaulting tenants

What happens if tenants stop paying rent? How can a property owner legally demand payment? What does rental housing legislation require? The answers depend on the nature of the lease and the nature of the tenants.

Consumer Protection Act

The Consumer Protection Act 68 of 2008 (CPA) governs fixed-term agreements between persons. A lease agreement falls into this category. A landlord must give the tenant 20 business days’ notice to rectify any breaches with the lease agreement (e.g., late rental). If the tenant pays the amount owed within this time frame, the matter is resolved. If not, the landlord is entitled to terminate the lease agreement and seek new tenants – hopefully ones who will always pay their rent on time.

Rental housing is governed by more than one piece of legislation. The Rental Housing Act 50 of 1999, Rental Housing Amendment Act 35 of 2014, and Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) apply, along with the CPA. In determining the application of the CPA, there are two key factors to consider.

  1. Is the lease agreement for a fixed period? 

This is fairly standard with lease agreements. The most common period is one year, but two years and six months are also found. If the lease is not a fixed-term agreement, it is known as a month-to-month lease agreement. The CPA does not apply to month-to-month leases and the landlord can give the defaulting tenants a seven-day letter of demand for the money.

However, this is not the same as eviction. The Rental Housing Act 1999 requires the landlord to give the tenants one calendar month’s notice to vacate the premises.

If the lease is for a fixed period, the CPA applies and the tenants must be allowed 20 business days to rectify the breach. Only if the breach is not rectified can the eviction process begin.

If the lease was for a fixed period but has since expired, and the tenants have remained in the property by mutual consent, this is considered a month-to-month lease agreement operating on the same terms as the original lease agreement. These terms will continue to apply to the month-to-month lease. CPA will not apply and the seven-day letter of demand can be used. When it comes to giving notice to leave the property, the notice period stated in the original lease applies. If no notice period is specified in the lease, a minimum of one calendar month’s notice is required.

  1. Are the tenants a natural person or a juristic person?

If they are a natural person the CPA applies and 20 business days’ notice is required.

If they are a juristic person then the process to follow depends on their size and value. If the annual turnover or asset value does not exceed R2 million the CPA applies, along with 20 business days’ notice. If turnover or value exceeds R2 million, CPA does not apply and a seven-day letter of demand can be issued.

The following infographic shows the process to follow:

Source: TPN Credit Bureau

For further information

Simon Dippenaar & Associates, Inc. is a Cape Town law firm of specialist eviction lawyers, now operating in Johannesburg and Durban, helping both landlords and tenants with the eviction process. 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.

Further reading: