Tenants have rights with or without a written lease
Your arrangement with your tenant is not working out, and you’ve reached the point where you are considering eviction. But you don’t have a written lease agreement and you’re not sure how to evict a tenant without a lease. What now?
Firstly, you cannot take the law into your own hands. You must follow the correct process if the eviction is to be deemed lawful. Whether or not there is a written lease agreement, if a landlord allows someone to reside on a property and accepts rent, that is regarded as a de facto lease and is binding.
This scenario will soon change, however. The as yet un-gazetted Rental Housing Amendment Act 35 of 2014 compels landlords to have a written lease agreement in place and is just one of the regulations that will further protect the rights of tenants and reinforce the obligations of landlords.
Landlords and tenants will have six months to comply with the provisions of the Act once the new legislation comes into effect. All new lease agreements must be in writing and verbal agreements will no longer be binding.
Allow time to remedy a breach of contract
If the tenant is in breach of a rental agreement, the landlord must notify the tenant in writing and allow them to remedy the situation. This might happen if there is excessive noise, there are pets on the property without permission, or rent is in arrears. Unless specified in the lease agreement, a tenant has 20 working days to rectify the breach in accordance with the Consumer Protection Act (CPA). In the case of a verbal agreement, or if the lease has expired but the tenant still lives on the property with the landlord’s permission on a month-to-month basis, the landlord must afford the tenant one calendar month’s notice to make good the situation.
If the tenant fails to repair the breach within the specified time period and the matter cannot be settled, the next step is for the landlord to issue the tenant with a letter cancelling the lease. With a bit of luck, the troublesome tenant will vacate the property at the end of the notice period. However, if the notice of cancellation is ignored and the tenant refuses to leave, the landlord may have no choice but to apply to the court for an eviction order.
The steps to eviction with or without a written lease
An eviction order will be served 14 days prior to the court hearing and, if the tenant is unable to present a valid defence at the hearing, a warrant of eviction will be issued allowing the sheriff to remove the tenant’s possessions from the property. If the tenant does present a valid defence at the hearing, a trial date will then be set.
Removing a recalcitrant tenant can be extremely frustrating, but failure to observe legal processes will result in an unlawful eviction and possible criminal action.
The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 1998 (PIE) sets out strict procedures on how to properly evict unlawful occupiers from residential properties, while prohibiting illegal evictions. It is not permissible to change the locks or turn off the water and electricity. A landlord who does not comply with PIE could face a fine or up to two years imprisonment, so it’s best to hire an eviction lawyer at this stage to ensure the correct procedure is observed.
Keep on the right side of the law
Tenants or landlords may decide to terminate a lease agreement for many reasons, but, whatever the grounds, both parties must act within the law. Simon Dippenaar and Associates are expert eviction lawyers who will ensure the correct procedures are followed every step of the way. We will assist with eviction notices and court appearances to secure a satisfactory outcome. Call us on 086 099 5146 or email firstname.lastname@example.org.