How to evict a tenant – When to start the process
Rent is late…again. As this dreadful month-end ritual unfolds, you can’t help but wonder: Will the rent be paid in full, or at all, this time? If not, what then? Can this situation be resolved? How can it be prevented? Perhaps the most common predicament landlords face when having to evict a tenant is the uncertainty of what to expect and figuring out what to do. In her book, The Landlord’s Guide – Property Rental and Eviction, attorney and MD of SSLR Inc, Cilna Steyn, provides guidance on some of the typical problems facing landlords while providing the legal options available to address them.
Steyn has kindly granted HomeTimes permission to republish her book.
Chapter #1: Taking control of your property
There could be several reasons why a landowner wants occupants removed from a property, but the scope of this book is limited to the more common landlord-tenant type disputes.
The first rule, in the event of such a dispute, is to avoid playing into the hands of problem occupants by, for example, disconnecting electricity or water, removing or locking doors or resorting to any other form of spoliation (spoliation is discussed in some detail later). This is pivotal in determining whether the landlord or the tenant controls the situation – at least for the foreseeable future.
To enable you to follow the flow of the process, and to best explain the options available to a landlord when faced with a tenant dispute, we’ll assume a scenario where the tenant (Mr Lessee) has defaulted on the rental payment and is consequently in breach of the lease agreement with the landlord (Mrs Lessor). The same process would also apply to other kinds of breach.
Of course we don’t want to evict an otherwise good tenant who just managed to miss the rental payment deadline last month. But this raises the question: How, then, do you determine when to evict a tenant?
The eviction process takes place in a number of stages. The situation can still change if the tenant decides to pay the rental and continue with the lease but with control firmly in the hands of the landlord, if it is handled correctly from the outset. The decision to evict, in this particular scenario, develops over time and will be influenced by the tenant’s response and behaviour.
If the tenant is in breach of the lease agreement, the first step would be to place the tenant in mora (on terms), and allow him a certain number of days to remedy the breach in full. A written notice is required to place a contracting party in mora and is done here through the Letter of Demand.
The number of days required to allow for remedy of the breach would depend on whether or not the Consumer Protection Act (CPA) applies to the agreement. If the CPA applies, 20 business days are required, otherwise only 7 calendar days or other period prescribed by the lease agreement.
If the tenant still remains in breach after the required period, the landlord can either opt to uphold the lease agreement and claim the rent, or cancel the agreement and proceed with the eviction process. Separate courses of action are required for each of these options and the consequences should be carefully considered by the landlord before taking action. For example, should she choose to claim the rent and the rental claim proves to be unsuccessful, all is not lost. The landlord can still proceed to evict anyway but valuable time and money would have been wasted in the process.
Claiming for rental and damages
A landlord is entitled to uphold the lease agreement and claim the arrear rental while a claim for damages may also be instituted if loss is suffered. These damages will be all the lost income, equivalent to the monthly rental that would have been due from the day of cancellation of the agreement.
Although not compulsory, a letter of demand would be advisable in some cases since it can set the stage for negotiations relating to the outstanding amount, as well as a possible repayment agreement. Furthermore, it starts the running of interest and provides an opportunity to place the tenant in mora in case the situation develops into an eviction.
Should the letter of demand not have the desired effect, summons must be issued and the normal debt collection process followed. Mrs Lessor bears the onus in the rental claim to allege and prove the lease and the rent outstanding, as well as proving that she has fulfilled all her obligations in terms of the lease. Mr Lessee on the other hand has the onus to prove payment if this is his defence.
If, in the above example, the rental claim was unsuccessful but Mrs Lessor had followed the procedure as suggested above by including the mora letter in the Letter of Demand, she can now still proceed to cancel the lease agreement and continue with the eviction process, should the tenant refuse to vacate the property, without having to start the process all over again.
The lease agreement is not automatically cancelled when a tenant is in breach. The landlord needs to cancel the agreement once the period which is allowed to remedy the breach – as per the mora letter – has expired, with the tenant still remaining in breach.
With the prospect of a possible eviction in mind, the most efficient way to proceed is, firstly, through a mora letter (as was included with our Letter of Demand above) and then, after the period allowed for remedy of the breach, to cancel the agreement by way of a separate notice.
On cancellation of the lease agreement, all terms of the agreement are cancelled. Accordingly, the tenant would no longer be liable for rental payments [¹] and would also not be entitled to occupy the premises. On cancellation, the tenant can be afforded a reasonable time to vacate the premises. In our scenario however, the tenant has already received notice to place him in mora (on terms). So that, by the time the agreement is cancelled, the tenant would have already had reasonable time to make the necessary arrangements to vacate the premises. It would thus not be unreasonable to expect the tenant to vacate the premises immediately on cancellation of the lease agreement, failing which, eviction proceedings can be instituted immediately.
 In the instance where the agreement was for a fixed term and cancellation placed the tenant in illegal occupation of the premises without any liability of rental payments, the landlord would suffer damages in the amount equal to the reasonable rental income on the property. The amount payable by the tenant to the landlord for this period would not be referred to as ‘rental’ but as ‘damages’. Normal legal action can be instituted to reclaim the damages from the tenant. Regardless of the provisions of the CPA, these damages (also referred to as a cancellation fee) will be limited to the damages actually suffered by the landlord. This would seldom, if ever, be for the full remainder of the period of the lease in a case where a new tenant took occupation of the premises.
What if, after cancellation, the parties decide to continue with the lease agreement? When this happens, it is imperative that the lease agreement be reinstated formally. It is advisable that a reinstatement addendum is done, which refers to the initial agreement and states that the parties wish to have the agreement reinstated on the same terms as the initial agreement. The addendum must then be signed by both parties as was the agreement.
A special word of caution on the unintentional reinstatement of an agreement. Here the agreement has been cancelled, but the tenant remains in occupation and continues rental payments. This would be seen as a tacit agreement and would not necessarily be based on the terms contained in the initial agreement.
It also happens very often that after cancellation of the agreement, the landlord continues to deliver invoices to the occupant. On cancellation of the agreement, rent is no longer payable. Therefore, delivery of an invoice for rent is interpreted as an indication that rent is due and that the agreement is accordingly reinstated.
Cilna elaborates: “An agreement can very easily be reinstated without the known intention of the landlord to do so. We very recently had a case where the lease agreement was cancelled and the occupant refused to vacate the property, and we accordingly initiated eviction proceedings. In the Answering Affidavit of the occupant they attached a letter from our client, which was sent to the occupant after cancellation of the agreement where our client, the landlord, reminded the occupant that the rental amount would escalate at a rate of 10% per annum. This is seen as reinstatement of the agreement.”
Next time: Navigating the eviction process
Who is Cilna Steyn?
Cilna Steyn, MD of SSLR Inc, completed her LLB Degree at Unisa, after which she was admitted as an attorney in 2007. She co-founded Steyn & Steyn Attorneys, where she began specialising in evictions.
She regularly presents trainin
g sessions, where she advises groups of rental agents and private landlords on matters relating to landlord and tenant disputes and broader scope property law-related matters. She also acts on the panel of experts for the Law Society of South Africa’s Legal Education and Development. She presents seminars on behalf of LSSA: LEAD, educating attorneys nationally on eviction procedures and rental claims. She is one of the drafting attorneys of the TPN (Tenant Profile Network) Residential Lease Pack.
Cilna authored The Landlord’s Guide – Property Rental and Eviction in 2015 and regularly publishes articles in newspapers and peer-review magazines. She also appears on television and radio, participating in discussions relating to property law and, in particular, evictions. As the managing director she is dedicated to leading SSLR Inc in accordance with its core values.
Cilna is passionate about property and understands the pressures of being a landlord. Her attention to detail and knowledge of property law makes for efficient evictions.