How to, lawfully, evict your defaulting tenant
Challenging economic times have meant that many landlords and tenants in the residential market have been impacted, with tenants unable to keep up with their monthly rental. Although this constitutes a significant loss in income for the landlord, the tenant cannot simply be evicted – they are protected by the Prevention of Illegal Eviction from Unlawful Occupation of Land Act, No. 19 of 1998, also knows at the PIE Act.
Adrian Goslett, Regional Director and CEO of RE/MAX of Southern Africa, explains the PIE Act as follows: “Essentially the act applies to the occupation of premises which constitute a dwelling, which in the case of a landlord and tenant relationship would be the residential property in an urban area. The reason that the act was introduced was to ensure that tenants were protected from being unlawfully evicted from the property. However, it is important to note that while the act aims to prevent wrongful eviction, it does not mean that the tenant cannot be evicted, merely that the correct procedure needs to be adhered to during the process.”
Considering this, Goslett says that it is imperative that any homeowner or investors who wishes to let out a property familiarise themselves with the PIE Act as well as the procedures required to lawfully deal with a defaulting tenant. “While the act was created with the tenant’s protection in mind, it is not prejudice against landlords, but ensures that the eviction process is followed in the correct manner according to legislation and that tenants are treated with respect,” he explains.
Once the tenant defaults on the agreed rental the rental contract has been breached. The landlord must send a notice to the tenant informing of the breach, specifically referring to the breach clause stated in the agreement
Top Tip: Ensure that lease agreements meet legislative requirements and include the necessary clauses providing a landlord with protection. The more detailed the lease agreement, the better for both parties.
“The lease agreement must also align to the Consumer Protection Act (CPA),” advises Goslett. “The landlord must give the tenant at least a 20 business day notice to allow the tenant to rectify the breach before the agreement is cancelled.”
If the notice period passes and the tenant does not remedy the breach the landlord has two possible paths of action: Proceed with a summons with an automatic rent interdict, or immediately cancel the rental agreement. If the contract made provision for it, the landlord might be able to recover legal costs for the process from the tenant.
“If after the summons the tenant has still not made any attempt to pay the outstanding rental amount, the landlord is within their rights to cancel the lease agreement. If the agreement is cancelled the tenant will no longer fall under its protection and will be regarded an illegal occupier of the property,” explains Goslett. “ In terms of the PIE Act, the landlord will then be able to legally evict the tenant, in fact, provided the lease has been cancelled, the landlord can initiate the summons proceedings for outstanding rent and the eviction proceedings simultaneously.”
Goslett says the following aspects must be considered when applying for the eviction of an illegal occupier:
The first aspect is the fact that the application must be made to either a Magistrate’s court or the High Court; if the application is unopposed it can take at least eight to ten weeks for the eviction order to be granted. Adding to the time factor is the fact that it is common practice in South Africa to provide the tenant with at least another 14 days to find other accommodation before the eviction order is executed. Only once this notice and grace period has passed will the sheriff be lawfully entitled to evict the tenant.
… And money
The cost of the process may vary depending on the sheriff’s fees and whether the matter is opposed or not. An unopposed eviction will cost between R12,000 and R20,000 in legal costs plus disbursements. The cost of an opposed matter will be substantially more.
It is clear that as a landlord, you must take the necessary precautionary steps to ensure that you are protected by the law, and to avoid unnecessary situations with your tenants.