Know your rights as a tenant
Feeling at the mercy of commercial landlords while searching for rental properties? You’re not alone. Especially in the fiercely competitive rental markets like the Western Cape, landlords may take undue advantage. However, as a tenant, you must remember that the law offers considerable protection. Knowing your rights and the responsibilities of the landlords can safeguard you from illegal eviction practices. Tenants have rights, and landlords have responsibilities (though they also have rights, and tenants also have responsibilities). Of course, ultimately the party with ownership status has more influence over the fate of the property than the party that rents it. But that does not mean a landlord can take the law into their own hands. The vast majority of landlords are honest and respectful of their tenants. After all, it’s a commercial relationship that works best when all parties are satisfied with their interaction. However, it does happen that a landlord occasionally ignores legal requirements and abuses their position. If you find yourself facing an illegal eviction, what are your rights and what can you do about it?
What constitutes illegal eviction in South Africa?
Tenants may only be evicted from a property by means of a court order. Any eviction other than one authorised by a court is illegal.
The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act No 19 of 1998 (PIE) contains specific regulations that govern the eviction process. Any action that contravenes these regulations is deemed to be an illegal eviction and the courts take this very seriously. But what might an illegal eviction look like? What are some of the things a landlord might do that are in breach of the law?
Common illegal eviction tactics used by landlords
All of the activities below are illegal, but unfortunately they do occur. If you experience any of these behaviours, keep a record of the incident and the date and time. We’ll say more about how to deal with these practices below.
Lockouts: Landlords may not change locks, deny tenants access to their homes or unlawfully dispossess them from the property to force them out. This is illegal and is a violation of the tenant’s rights to the property. The tenant’s rights continue to be in force even if they are in arrears with rental payments.
Utility disconnections: Cutting off essential services like water, electricity, or gas is strictly prohibited without following the proper legal channels.
Verbal or threatening behaviour: A landlord cannot verbally or physically force a tenant to leave their home without obtaining a court order for eviction.
Harassment: Continually disturbing or harassing tenants with the intention of making their living conditions unbearable is illegal and tenants have the right to seek a protection order against their landlord if this happens.
Seeking a legal solution: the spoliation order
If any of these actions lead to dispossession, i.e., being removed from the home, depending on the circumstances tenants may bring an urgent application to court and ask for a “spoliation order”. Spoliation means “the wrongful deprivation of another’s right of possession”. If the Magistrate is satisfied that the tenant has been unlawfully dispossessed without the landlord following the necessary legal procedure, an order will be granted for possession to be reinstated.
If the landlord attempts to evict a tenant illegally, they could face a heavy fine or be required to pay damages to the tenant. In the worst case scenario the landlord could potentially wind up in jail, facing serious criminal charges.
Your rights as a tenant – safeguards against illegal eviction
The provisions of the Rental Housing Act are clear on the rights of tenants. The tenant’s rights against the landlord include the right not to have:
- Their person or home searched
- Their property searched
- Their possessions seized, unless the landlord has first obtained an order of court
A written lease cancellation or eviction notice must first be served by the sheriff on the tenant. This notice has to offer the tenant a minimum of one month to vacate the property. A court date is then set and a deadline given for filing an opposing affidavit, if the tenant wants to oppose the eviction. A landlord cannot evict a tenant without going through this correct procedure.
Dealing with illegal eviction practices – a step-by-step guide
If you are being harassed or victimised by your landlord, you are not helpless. Legal recourse is available. But you must not respond with equally unlawful behaviour. Instead, stay calm and be methodical in your approach.
Document everything: Keep a record of all communication and incidents related to the eviction, including notices received, dates, times, and any evidence of harassment or illegal actions.
Seek legal advice: Consult with a qualified attorney to understand your rights and the legal avenues available to you.
Lodge a complaint: Report any illegal eviction practices to the Rental Housing Tribunal, Department of Human Settlements, or your local municipality. They can provide guidance and resolve disputes.
Court intervention: If none of the above gives satisfactory results, consider applying for an urgent interdict at your local court to protect your rights and prevent the eviction until a proper court hearing takes place.
Illegal eviction practices are a violation of tenant rights and can cause significant distress. Don’t panic. Know your rights and understand the legal process. This will enable you to deal effectively with the situation.
For further information
If you are being subjected to illegal eviction practices, our specialist eviction lawyers can help. Simon Dippenaar & Associates, Inc. helps landlords and tenants maintain healthy working relationships but, when necessary, we can assist with eviction, ensuring it is effected legally and ethically. Contact one of our eviction attorneys on 086 099 5146 or firstname.lastname@example.org if you think you are being treated unfairly or unlawfully by your landlord.