How to evict a tenant – Why you should avoid eviction ‘cowboys’
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 #3 – Legal concepts in context
When is a tenant in breach?
According to the CPA, a tenant has to be in breach of a material term of the agreement for a landlord to be in a position to place the tenant on terms and potentially cancel the agreement. A material term is seen as a term of the agreement which goes to the very root of the agreement. With regard to the lease agreement, payment of the rental due would be an example of a material term. The parties can also agree, for instance, that the tenant would adhere to the body corporate rules and that this would be a material term of the agreement. Failing to do so would mean that, should the tenant contravene the body corporate rules, the landlord would not be in a position to cancel the agreement on that basis.
When the tenant is in breach of the agreement – even if it is breach of a material term of the agreement – the agreement would not be cancelled automatically. The landlord would first have to place the breaching tenant in mora (on terms) and allow the tenant the period of time (as indicated in the mora-letter) to remedy his breach in full. Only if the tenant fails to remedy his breach in full, within the allowed time, would the landlord be in a position to cancel the agreement.
A written notice is required to place a contracting party in mora. The notice has to contain the following:
- Details of the breach;
- The time period that the tenant is allowed to remedy the breach;
- A very clear indication that the tenant’s failure to remedy the breach would result in cancellation of the agreement, which would render the tenant’s occupation illegal.
Although the notice can be included with the Letter of Demand, it cannot contain the cancellation as well. Many a terms letter also includes the cancellation stating, for example, that, should the breach not be remedied within the allowed time, the agreement would automatically be cancelled.
This would not be adequate cancellation and a separate notice would be necessary to cancel the agreement if the breach was not remedied in full. It is also not advisable to cancel the agreement in a summons as it could potentially delay an eviction. As mentioned before, the ideal is to have a mora letter and then, after the period allowed to remedy the breach, to cancel the agreement with a separate notice.
Spoliation and illegal eviction
Spoliation is usually the first thing that jumps to mind when a landlord is confronted with a problem tenant or illegal occupant. By resorting to creative, illegal tactics to get rid of the problem, a landlord could be putting an informed tenant in control of the situation by relinquishing his rights in favour of the tenant. The opposing parties switch places, with the tenant now becoming the victim in need of protection in the eyes of the law – often at the expense of the landlord.
When is eviction illegal and what are the consequences?
Section 26 of the Constitution states the following:
(1) HOUSING: Everyone has the right to have access to adequate housing.
(2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.
(3) No one may be evicted from their home, or have their home demolished, without an order of court made after considering all relevant circumstances. No legislation may permit arbitrary evictions.
In terms of the above section, a person may not be evicted without an order of court. A landlord should refrain from unlawfully interfering with the tenant’s use and enjoyment of the property. The landlord who unlawfully disturbs the tenant in the use and enjoyment of the property is guilty of breach of contract. This is called spoliation and occurs when a landlord cuts off the electricity, removes the front door of the property, or locks the premises – to mention just a few. The tenant will be entitled to enforce the contract or, if the breach is serious enough, to cancel the lease agreement. A mandament van spolie may be applied for in order to put the tenant back into undisturbed use of the property and he or she may be entitled to a pro-rata remission of the rent for the time of deprivation.
You won’t be blamed at this point for thinking: Why all the fuss about spoliation? Surely if a tenant can’t even pay the rent, what is the likelihood of him being able to afford a High Court application? Well, the truth of the matter is that many attorneys would accept such a matter on a contingency basis (no win – no fee) and possibly even throw in a free consultation. Since the unlawful evictor is likely to end up with most, if not all, of the legal bills, they might even brief counsel. Furthermore, in the Rental Housing Amendment Bill, arbitrary evictions are criminalised. The implications are that, besides a spoliation cost order, a landlord guilty of spoliation could face criminal charges and even a jail sentence.
CASE STUDY: BRODRICK V MHLALO – SPOLIATION COST ORDER
(Courtesy Cilna Steyn)
Our client, Mr Brodrick, instructed us to institute legal proceedings against his tenant Mr Mhlalo. His tenant had not paid rent for many months. Upon entering into negotiations, it was revealed to us that our client had actually locked his tenant out of the property for 5 days. The tenant therefore instructed his attorneys who attended court within 12 hours with counsel. The Magistrate immediately ordered our client to give possession of the property back to the tenant at once, despite the fact that the tenant was in arrears with rental payments. Along with this, the court awarded costs against our client to pay the expense of the spoliation application. After taxation, our client was liable for approximately R23,000 in legal costs.
Yes, it may be unfair but, before you put your rental property up for sale to “get-the-hell-out-of-here!” consider this: Spoliation laws have been around for a very long time and, inasmuch as the Constitution protects a tenant, it also protects the landlord, provided we stay within the confines of the relevant legislation. Even the title of the PIE Act refers to the rights of both landlord and tenant i.e. Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998; with the first part: ‘Prevention-of-Illegal-Eviction-from-land’ referring to the rights of tenant and the second part: ‘Prevention-of-Unlawful-Occupation-of-land’ referring to the rights of the landlord.
On the effective use of the PIE Act, Cilna points out: “Evictions can be complex, expensive, and take very long or they can be straight forward, less expensive and be done in a few weeks. Just recently at our firm, Elize le Roux has completed an eviction from start to finish in under a month: 29 days to be exact.”
Termination is not the same as cancellation. The lease is terminated by the death of the landlord or the tenant if the contract so provides. If the lease is at the will of a party, it will terminate on the death of that party. A reasonable period after the death of the landlord must be allowed to a tenant to vacate the premises. Apart from this instance, however, the death of a landlord or tenant has no effect on the continued existence of a lease and a lease is not dissolved by the death of one of the parties (this is also in compliance with the Huur Gaat Voor Koop principle). The rights and duties of deceased landlords, or tenants, are passed on to their respective heirs upon their deaths.
Example: Mrs Lessor and Mr Lessee enter into a lease agreement of the Farm Peaches whereby Mrs Lessor is the landlord and Mr Lessee is the tenant. Should Mrs Lessor have mentioned the existence of the lease agreement in her last will & testament, stating that the lease agreement would cancel upon her death, whereby her son would inherit Farm Peaches, the lease agreement will be terminated by Mrs Lessor’s death. However, should the will be quiet on the termination of the lease agreement and Mrs Lessor’s son inherit the farm, he must then respect the lease agreement and act in accordance with the provisions of the lease agreement until the lease agreement is cancelled or terminated. This principle is in line with the huur-gaat-voor-koop principle as outlined earlier.
Last time: When eviction is opposed
Next time: What is essential to include in a lease agreement?
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.