A large section of the South African population are full time renters, giving property owners a great opportunity for rent income. However signing the lease agreement and collecting the rent is not always as easy it it may seem. Sadly your real troubles may only be starting here, as an eviction may be one of the possible troubles to come knocking on your door.
It is well known that your illegal tenant is still protected by the Prevention of Illegal Eviction from Unlawful Occupation of Land Act, No. 19 of 1998, also known as the PIE Act. It is for this reason that you as a landlord and managing agent need to ensure that you did all your home work and all your paperwork. Simply being smart for a possible dark future with your tenant, ensures that you should be able to evict those unwanted tenants.
Understanding the PIE Act
It is important to remember that the PIE Act does not discriminate against landlords, it merely ensures that any tenant is evicted with respect and done so fairly. It is important for any landlord and their managing agent to familiarise themselves with the PIE Act, as this is the way to evict an illegal tenant legally.
Breach of the Lease Contract
Once a tenant has breached any area within the Lease Agreement the landlord is entitled to inform the tenant of this breach and start the process of a possible eviction. Landlords need to be aware that they need to give this breach of Lease Contract in writing and also to stipulate the exact clause with in the leases agreement. It will be a good idea to make a copy of the lease agreement and attach it to the notice.
Remember you need to show to the court that you as a landlord or managing agent have been fair and respectful. In order to show this it is important to hold your ‘cool’, keep your tone in check and provide as much information as you can to try and make your tenant’s life ‘easier’, in the long run its going to make your life a lot easier.
Another matter to be aware of, your lease agreement must also fall inline with the Consumer Protection Act (CPA). This means that no matter the time period stimulated in your initial lease agreement the landlord has to give the tenants 20 days to rectify the breach before the lease agreement is cancelled, provided the tenants doesn’t rectify the breach.
Summons and interdicts of Evictions
Lets take an example of a tenant not paying rent. Once the notice period has lapsed and the tenant has still not rectify the breach (paying his rent) then the landlord is fully in his right to proceed with a summons (possibly with a rent interdict). If the issue is still not rectified after the summons that landlord are entitled to cancelling the lease agreement. This basically means that the tenant is no longer protected by the lease agreement and is now considered an illegal occupier. Meaning you may now legally evict the occupier in terms of the PIE Act.
It must be noted that the application for a summons must be made to the Magistrate Court, Rental Housing Tribunal or the High Court. This eviction process can take between 8-10 weeks, granted its not opposed. After the hearing the eviction will be fully granted, however it is common practice in South Africa to give the tenant a full month of rent, in order for them to find new accommodation. If the tenant has still not moved out after this month has expired the Sheriff has the right only now to evict the tenant and process their goods.
Legal Cost of Evictions
This matter will vary depending on the situation and also the Sheriff’s cost. But a ball park figure for an unopposed eviction process to be between R 6000 and R 8000 plus disbursements. An opposed eviction process will however cost fairly more. As such it is most important to check your prospective tenants, call their references and check their credit rating.
“Landlords may be possible to recover the legal cost of an eviction, that is if it was stipulated in the original lease agreement before hand. So make sure you add this to the lease agreement.”
It is imperative for landlords to follow the correct proceedings from the very start. If you feel this might be a bit too much to handle then it is suggested that you consider a renting agent (like Mafadi) to manage the process for you, that is from the start of course. You might think you can save the small commission fee they ask, but honestly they are worth their commission, considering how much it can cost you in the end.
Other Options to Evictions
The process I explained above is the correct and 100% legal way. However living in our Rainbow South Africa it is not always sunshine as we like to think. This process can take a very long time and this will means that your illegal occupant is staying for free while you loose out on your rent. There is however another way and that is to go to the Small Claims Court. This process will be faster, but it means you will have to get your own hands dirty. However once you have the judgment (in the landlords favor) you can go to the Court’s Sheriff and ask him for the collection of the funds (missing rent income). The Sheriff is responsible for the collection of the cash or otherwise the collection of the goods to the value the court approved.
It must be remembered that an unlawful eviction will cost you far more time, energy and money. It is for this reason that you should always know your legal rights first and then start your action plan. It also a good Idea to familiarise yourself with the Rental Housing Tribunal
Know the Do’s and Don’ts when it come to evictions.