Ensuring fairness and compliance: How to evict non-paying tenants.
Category Advice
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 tenant's and the landlord's rights are protected. Following the necessary steps is key to a hassle-free eviction process.
Both the tenant and the landlord must play fair in 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.
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.
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. 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.
If the tenant fails to pay what is due by 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.
Because the eviction process can be so lengthy, it is suggested 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 through a professional 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 rather get expert help right from the very beginning than to try and navigate these challenges on your own.
According to the Department of Human Settlements, a Rental Housing Tribunal has the authority to deal with disputes, complaints or problems between tenants and landlords in the rental housing dwellings:
- Non-payment of rentals
- Failure to refund the deposit
- Invasion of tenant's privacy, including family members and visitors
- Unlawful seizure of tenant's goods
- Discrimination by landlord against prospective tenants
- The changing of locks
- Lack of maintenance and repairs
- Illegal evictions
- Illegal lockout or illegal disconnection of services
- Damage to property
- Demolition and conversion
- Forced entry
- House rules
- Intimidation
- Issuing of receipts
- Municipal services
- Nuisance
- Overcrowding and health matters
In terms of section 13(13) of the Rental Housing Act 50 of 1999, a ruling of the Tribunal is deemed to be an order of a Magistrate's Court in terms of the Magistrate's Court Act, 1994.
Extract from Property 24
Author: Extract from Property 24
