LANDLORD'S RIGHTS – TENANT EVICTION

by Taryn Davies Stevens • 4 MIN • 784 Words

The Q2 2023 PayProp Rental Index has highlighted a concerning increase in tenant arrears, reaching an alarming 18.4%, the highest level since 2021. This escalation has left numerous landlords with little choice but to explore legal avenues for resolution.

While unpaid rent is a valid reason for seeking the removal of a problematic tenant, landlords must ensure they are well-versed in the relevant legal provisions before commencing eviction proceedings.

In South Africa, the Rental Housing Act of 1999 governs the relationship between landlords and tenants, specifying the rights and obligations of both parties. Under this legislation, tenants can only be evicted for legally recognized reasons constituting a breach of the lease agreement.

These grounds include:

1. RENTAL ARREARS:
Consistently late or incomplete rent payments may lead to eviction, although some landlords may grant a grace period for settling outstanding balances.

2. ENGAGING IN ILLEGAL ACTIVITIES:
Tenants involved in criminal activities like theft, drug dealing, or sex work can be evicted with proper evidence.

3. PROPERTY DAMAGE:
Tenants are expected to maintain the property reasonably, and negligence or failure to report structural issues may result in eviction.

4. LEASE AGREEMENT EXPIRATION:
If a tenant overstays the lease's duration and the landlord has adhered to the lease agreement and legal notice requirements, the tenant becomes an illegal occupier and must vacate.

It is important to note that, due to the 2022 Rental Housing Amendment Act, all lease agreements must be in writing, and this responsibility falls on the landlord. Verbal agreements are not legally binding and would not hold up in court.

However, there are illegal grounds for tenant eviction. Evictions cannot be based on discriminatory factors such as race, gender, ethnicity, religion, or sexual orientation. Furthermore, the court will dismiss eviction applications that seem retaliatory, meaning they are a response to a tenant asserting their legal rights or complaining about poor living conditions.

Tenants cannot be evicted for requesting repairs and withholding rent until those repairs are made, forming a tenant's association, or refusing to pay an unauthorized rental increase.

Should a landlord fail to follow the proper eviction procedures outlined below, the eviction can be deemed unlawful and contested by the tenant in court, regardless of the validity of the eviction grounds.

EVICTION PROCESS OVERVIEW:

The Prevention of Illegal Eviction and Unlawful Occupation of Land Act No. 19 of 1998 (PIE Act) dictates the correct steps for evicting illegal occupants:

STEP 1:
When a tenant violates the lease agreement, the landlord should initiate the process by sending a formal letter informing the tenant of the breach. This letter should specify a reasonable timeframe, typically around 20 business days, for the tenant to rectify the breach. If the tenant fails to do so within this period, the landlord has the legal basis to terminate the lease agreement and proceed with eviction.

STEP 2:
If the tenant remains in the property after the lease termination, the landlord must notify the tenant of their intention to seek an eviction order through the court. Subsequently, the landlord can file an application at the Magistrate's Court with jurisdiction over the property.

STEP 3:
The sheriff must personally deliver a written notice of the eviction hearing to the unlawful occupier(s) at least 14 days before the court date. This notice should clearly state the hearing's date and time, outline the reasons for eviction, and acknowledge the unlawful occupier's right to present a defense.

STEP 4:
All involved parties must attend the eviction hearing in court. If the unlawful occupier(s) fails to appear, the court may either reschedule the hearing or proceed in their absence, potentially leading to the court granting an eviction order.

STEP 5:
If the landlord is successful, the court issues a warrant of eviction to the sheriff, granting the authority to remove the tenant's belongings from the property.

To ensure a successful eviction order, landlords should gather sufficient documentation and evidence that aligns with legal requirements. Given the complexity of the process, it's advisable to seek legal representation to navigate the court proceedings.

It's crucial for landlords to maintain composure throughout the process and adhere to proper procedures, refraining from unlawful actions such as changing locks, disconnecting utilities, or disposing of a tenant's possessions before receiving the court's official ruling.

EVICTION COSTS:
Legal costs can range from R25,000 to R35,000, excluding mandatory sheriff fees, even in cases of uncontested eviction. Therefore, the landlord must perform a thorough review of the prospective tenant’s rental application as due diligence, in order to protect their interests prior to signing a contract with a tenant. These must include:
1. Credit checks,
2. reference verification, and
3. background checks when necessary.

For more information contact INTRO REAL ESTATE, it’s the right choice.

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