Evicting a tenant: The Do’s and Don’ts

As a landlord, one of the worst situations to find oneself in is with a problematic tenant that does not comply with the terms in the signed lease agreement.

There are many reasons for wanting to get rid of tenants, such as causing major damage to the property, staying on the property after the lease has expired, continuously breaking rules of the contract, but the most common reason for wanting to evict a tenant is due to late or no payment of rent money.  

There are a number of laws within South Africa that govern rental agreements, including the Rental Housing Act (Act 50 of 1999), Laws of Contract, common law, Consumer Protection Act (CPA) and the Constitution. However evicting such tenants is not a simple process, and there are certain do’s and don’ts dictated by  law that all landlords should be aware of in order to follow the correct procedure and have their tenants removed from the property for good.

According to Jan Myburgh, General Manager of Harcourts Real Estate South Africa,   “When a tenant does not pay rent on time, although they are in breach of their contract and a landlord has the right to terminate the contract, this does not necessarily mean that the tenant will vacate the property or that the landlord could just put pressure on them to leave”

The most important thing for landlords to remember is that they cannot evict a tenant themselves. As much as most landlords would love to personally be involved in evicting their troublesome tenant, this is not the correct route. When a tenant is in breach of the contract, landlords should first ensure that the tenant is served the notice to rectify the breach as stipulated in the lease agreement. If, or when nothing is done to rectify the shortcoming, a landlord can terminate the lease agreement and start the legal process to evict the tenant if they are not leaving on their own. The eviction could only be done by a court order, which may take up to 3 months to be effected. Legal fees will have to be paid to the attorney upfront, but these fees should later be reimbursed to the landlord by the tenant, as well as the outstanding rent money.   

Although a landlord may feel that they have the right to keep a tenant from entering their property by changing the locks to the property, this is an illegal eviction and the landlord will find themselves in hot water with the law if they perform this act. As in
standard circumstances, should any locks on the property be changed, landlords are obliged to supply tenants with the new set of keys.

“As angry as landlords may be towards their tenant and seek to reclaim unpaid rent money, they are not allowed to - under any circumstances- enter the property without notifying the tenant, or take the tenant’s possessions within the property as a means of
compensation for rent money that is in arrears,” explains Myburgh. Landlords in the past have had criminal charges laid against them by tenants. A court order needs to first be obtained before actions relating to the tenant’s possessions can occur.

Rental Risk cover could be utilised in order to protect the owner’s investment.  Having this form of insurance will give a landlord peace of mind knowing that risk of cost due to damage of property can be minimised as well as rental payments and legal costs could be covered. Harcourts Real Estate property management divisions does offer such products as part of their management services.

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