WHEN SHOULD A LANDLORD START THE EVICTION PROCESS?
Many landlords will have at one stage or another found themselves in the situation where their tenant cannot afford to pay the rent anymore and in most cases the tenant will leave voluntarily, but what happens in the case where the tenant refuses to move out?
Sunell Afrika, rentals manager for SAProperty.com, says, “It is important that as soon as there is breach in the contract, that is, if the tenant has failed to pay his rent or has gone against any of the conditions stipulated in the lease, the landlord has the right to put the tenant “on terms” notifying him that he will cancel the lease if the breach continues.”
The warning should be in the form of a written letter, to remedy the breach within whatever time frame is stipulated under the breach of contract section of the lease, or 20 days according to the Consumer Protection Act. If the tenant does not remedy the breach in full, the landlord can then start the process of cancelling the lease.
If the lease is cancelled, but the tenant refuses to move out, the landlord would then start the eviction process.
The landlord cannot take the law into his own hands and lock the tenant out, nor can he enter the premises and claim items that belong to the tenant to sell in lieu of rent that is due, as this would be theft, she said.
It is quite difficult and can take some time to evict a tenant, but the landlord must use all the prescribed measures as laid out in the PIE (Prevention of Illegal Eviction from Unlawful Occupation of Land Act) Act.
An ex parte application must be brought at the local court to get permission to initiate PIE procedures. This will have to be supported by two notices and a sworn affidavit which will allege unlawful occupation, the reason for the eviction and why it is fair to evict the tenant.
Once this has been issued, the Sheriff of the court will serve the notices, one to the tenant and the other to the local municipality. Fourteen days’ notice has to be given that a hearing will be taking place.
The tenant will be able to state his case at the hearing as to why he should be able to remain and that an eviction order cannot be granted, said Afrika. It has to be remembered that the courts will only grant the eviction order after considering all the circumstances and has established what is just. If there are special circumstances, i.e. a single mother with a child, the courts may not grant an eviction order straight away.
The courts tend to regard carefully the rights of the elderly, children, those with disabilities and households headed by a woman. They will use their discretion as to what date the tenant will have to vacate the premises and when the eviction order is to be effected, she said.
“While nothing is ever guaranteed,” said Afrika, “if the correct checks are done before signing a lease with a tenant, it reduces the risk of a bad tenant being placed. By ensuring the tenant’s financial status, previous rental track record, financial behaviour and references have all been positive, there is less chance that it will end in a case of having to chase the tenant for rent each month or that they cannot afford to live in the unit. If, for whatever reason, the tenant falls behind in their rent, the landlord must take action immediately and not wait for matters to rectify themselves, as he must protect his asset and future income.”