how to evict a non paying tenant south africa

The more detailed the lease agreement, the better for both parties, advises Goslett. A recent Constitutional Court judgement has ruled that residents cannot be evicted if they would be left homeless. advisable to engage the services of an eviction lawyer when needing to evict a tenant. However, note that this can differ based on the structure of your lease agreement. Chat with your tenant immediately to find out what has caused the delay. Never let a late or missed payment go unnoticed, as this can set a false expectation that this kind of behaviour is acceptable. Be sure to provide adequate notice of non-renewal. Renting out property is a business and although a landlord may sympathise with his tenant, most cannot afford to allow a non-paying tenant to remain in the property indefinitely. Eviction is the likely outcome, but you can always try one last thing: Cash for Keys. To learn more, see our Cookie Policy. Also, its a common practice in South Africa to provide the tenant with at least another 14 days to find new accommodation before the eviction order is executed. The costs will depend on the nature of the eviction. Photocopies can be forged. If the tenant chooses not to repair the damages, the landlord may do so by subtracting these costs from the deposit paid. Send a breach of contract letter if there is a default. If the notice is absconded, seek legal assistance. However, landlords cannot simply evict their tenant as theyre protected by the Prevention of Illegal Eviction from Unlawful Occupation of Land Act, No. Seeking the advice of a reputable property management agent or attorney when entering into a lease agreement will also ensure that the landlord avoids unnecessary situations with their tenants and enjoys maximum protection, Goslett concludes. However, landlords cannot simply evict their tenant as theyre protected by the Prevention of Illegal Eviction from Unlawful Occupation of Land Act, No. Then, he or she must also give you a chance to pay up the money before you can be sued. Make sure that the full bond repayment amount is always available in an accessible savings account just in case a tenant doesnt pay in time. It is for this reason that landlords must ensure that their lease agreements meet all legal criteria and include the necessary clauses providing them with protection. They consistently pay late or skip the odd month completely. According to the PIE Act, in order to lawfully evict a tenant, landlords will have to adhere to the following process: Belinda Lewis, Property Law Director at STBB Smith Tabata Buchanan Boyes Attorneys, says that if by failing to pay the agreed rental amount, the tenant has breached the lease agreement and the initial step would be for the landlord to send notice to the tenant informing him of such breach, referring specifically to the breach clause stated in the agreement. Only the sheriff may take any physical action against the tenant. Just cause covers failure to pay rent or breaking a term of the lease. Conduct regular inspections. Talk to your tenant about the issue. Tenant eviction has been a real problem recently. What is the eviction process? Typically a 3-day notice is directed toward tenants, not guests. At best, you show the tenant that youre willing to work with them, and they improve their actions. After issuing this, the court expects that if the renter has a valid defence as to why he or she should not be evicted, then, that should be made known. It is not a substitute for professional advice or help and should not be relied on to make decisions of any kind. This website uses cookies. Rental market seeing signs of recovery, following period of zero growth, Register for Property24s Hot Properties, Lifestyle and Weekly Property Trends newsletters, Real estate professionals optimistic about the future of the rental industry, Landlord/Tenant: Tips on how to avoid conflict over rental maintenance and repairs, Here are 3 steps to help you resolve rental disputes, Revamp your kitchen on a budget: Smart strategies to save money on renovations, July interest rate announcement predictions | 7 money-savvy tips for homeowners and buyers, Invest in a piece of paradise: Coastal plots for sale in Franskraal and Hermanus. Although the act was created with the tenants protection in mind, it does not discriminate against landlords. What each party is responsible for, e.g. Even in the event of an unopposed order, the court will want to ensure that the occupier is given enough time to vacate the property and find other accommodation before allowing the sheriff to enforce an eviction order, particularly in the case of vulnerable tenants, as noted above. If the tenant moves out, you both avoid going to court and additional legal costs. Extension of Security of Tenure Act ESTA, Organs of state specialised eviction process. Neither of these might be the tenants fault, but to make sure this doesnt have a knock-on effect on your bond repayments, we suggest you do three things: While it might be forgivable for the odd late payment if its a bank or financial system-related problem, you cannot be so lenient if your tenant gets into the habit of paying their rent late. Sometimes you have no other choice but to evict a tenant. Your bondholder will penalise you if you default or pay late, so there is no reason why you should not remind tenants of their legal obligations to you. Below, RE/MAX of Southern Africa explains the steps landlords should take before they can issue a defaulting tenant with an eviction notice: If the agreed-upon payment date has come and gone and youve yet to receive payment, contact your tenant immediately to inform him/her that their payment is overdue. 713-395-9700 In a situation where an occupant fails drastically in paying his or her rent, there are steps that such a landlord can take to deal with the defaulting renter before taking further legal actions. Landlordsshould contact their attorney to begin the eviction process. Even if this tenant has a history of doing similar things in the past, attempt to understand where theyre coming from. As long as an occupant complies with the obligations that are contained in the lease agreement, he or she reserves the right to occupy the property that is rented. The global pandemic has left many in financially challenging positions. Fill in the form below and we'll arrange a free follow-up call at a time that suits you best. Giving a tenant a little leeway is one thing; allowing them to abuse your generosity is quite another and unfortunately this is what happens in many instances. While you must follow the law, increasing rent from, say $1,500 to $1,800, may be a way to push a tenant out without taking any legal action. Thecorrect tenant eviction processneeds to be followed for an eviction to be lawful. Verify employment history. Evictions are done in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE). The landlord is responsible for ensuring the property is habitable before the tenant moves in. In some cases the landlord may be able to recover the legal costs for the process, although this would only be if the lease agreement makes provision for this. If the unlawful occupier/s fails to be present at the eviction hearing, the court may postpone the hearing or proceed with it in his/her absence. If there is any other option for recovering money you are owed, a goodeviction lawyerwill usually advise you not to sue. This means that you can legally evict your tenant. This field is for validation purposes and should be left unchanged. Order for eviction is executed (tenant is removed). Based on the steps discussed below, eventually, a landlord may not have to seek legal assistance. The eviction process can be lengthy. In most lease agreements the tenant is instructed to return the property to the condition it was received in, for example, patching and painting walls where art or pictures have been hung. This is how landlords and tenants should approach the issue. A lot of reasons could warrant a landlord to want to evict his or her tenant. After you have done all those and yet, the occupant refuses to obey, then, your only choice is to take legal actions and get an eviction order. These notices can either be delivered to the tenant personally or can be posted on the commercial property. An unopposed eviction costs between R5000 and R25000. Once the lease is cancelled, which means there is no longer an agreement to enforce, you can start both the interdict and the eviction processes at the same time. According to the CPA, landlords are required to provide a notice of at least 20 business days to their tenant to allow them to rectify the breach. This website uses cookies. For some reason defaulting tenants often take the view that the landlord has to be sympathetic to their circumstances - after all its not their fault they lost their job, crashed their car or had to pay other outstanding accounts. This act was introduced to ensure that tenants were protected from being unlawfully evicted from a property and that the correct procedure are followed during the process. In most cases, these people eventually transition into home ownership or reach a point where they can afford to move up in house. What should a landlord do with a non-paying tenant? So you have been stressing for months about unpaid rent due from your tenant, and you are unsure how to remedy the situation. Note: to make it a legally binding notice of breach of contract, it must be signed by the landlord or agent. For 14 free days, you can have access to a world of in-depth analyses, investigative journalism, top opinions and a range of features. In this case, your cash flow might improve, but youre still stuck with a nightmare tenant. DISCLAIMER: This article is intended for general informational purposes only and does not address individual circumstances. Invest in the future today. 29 July 2022 by Janie Venter Barnard Inc. Can a landlord disconnect the electricity supply to the leased premises of a non-paying tenant? The process, outlined below, begins when the tenant seriously breaches thelease agreement. Who can evict? The tenant has the right to repair all the damages before the landlord claims for it. document.getElementById( "ak_js_4" ).setAttribute( "value", ( new Date() ).getTime() ); 2500 Tanglewilde St, Suite 306 Some landlords may find themselves in a predicament where their tenant is no longer able to pay monthly rent. In South Africa, a landlord cannot immediately evict you without following the due processes. Word to the wise: for interdicts and eviction processes, its best to use the services of an appropriately experienced attorney. Thank them for their time with you, explain your move-out policies (including a move-out condition inspection), and be sure to emphasize how they can ensure they receive their security deposit back.. An opposed eviction that results in a prolonged court case can be very expensive, costing up to R100000. If the tenant does not vacate and you go to court for an eviction order, 14 days must elapse between the issuance of the court order and the date of the court hearing. Most commercial lease evictions will follow the same basic steps: A notice will be provided to the tenant. Tenant fails to move out/correct the issue. While you might think you can get a non-paying tenant out quicker if you change the locks or defer to other intimidation tactics, the truth is that this will most likely only provide the tenant with ammunition to use against you in the court proceedings. Tenants living rent-free can lead to huge problems for landlords as most rely on these payments to meet other financial obligations. Follow these steps to ensure your tenant verification is legitimate: Awritten leasewill prevent disputes over who said what? and will become a legal requirement when the Rental Housing Amendment Act comes into force. Dont let the possibility of a defaulting tenant stop you from searching for an investment property. Thereafter, an application to the court for eviction and payment of arrear rental is drafted, issued and served to the recalcitrant occupier. Simon Dippenaar & Associates is a general practice of attorneys offering a one-stop, comprehensive range of key legal services. If found guilty and convicted, the landlord may receive a fine or even face a prison sentence of up to two years. In rare cases where it is proven that the tenant has made improvements to the property, effectively raising the value of the property, the landlord may be liable to pay the tenant for these improvements. Give the tenant a written eviction notice (if required). The period until an eviction begins can vary. Landlords may not take matters into their own hands and evict a tenant without a court order. If tenants fail to rectify the breach - pay what is due - within the stipulated 20 days, as the landlord, you have two options: proceed with a summons (interdict the tenant) or. It saves you from having to go through the expensive eviction process and gives them some money (which they may need). Cookie Policy | Legal Disclaimer | The sooner the non-paying tenant is off the property, the sooner a new occupier can be found and the income stream can start flowing again. There are three different categories of defaulting tenants. We have particular expertise in rental housing law and the eviction process. While the eviction order may be granted on the date of the hearing, it is common practice in South Africa to provide the tenant with at least a month to find other accommodation. Steps to Evicting a Tenant for Nonpayment of Rent: Set up a good screening process beforehand. Either party may cancel the lease, and the terms under which this can be done should be set out in the lease. Only then will the sheriff be lawfully entitled to proceed with evicting the tenant. Call past landlords. "In the event that the notice period ends and the tenant has not remedied the breach, the landlord will have the right to take further action. 4. 4. Court rules on the eviction. The key things to note in the move from Adjusted Alert Level 2 to Alert Level 1 is that curfew will now begin at 12am ending at 4am. In most cases the CPA has the last word. But because the eviction process can be expensive and drawn out, you dont necessarily want to file for a formal eviction. Interestingly, these are part of the issues discussed in this article. Maybe the rent isn't being paid, or maybe there's illegal activity taking place on your property. Read: How landlords can meet tenants halfway, as 24% of rental market faces distress. However, while considering tenants rights without a lease South Africa, a landlord does not have the right to evict a renter all by him or herself. Call up the occupant. The cost may vary depending on the sheriffs fees and whether the matter is opposed or not. The landlord has to apply for the illegal occupant to the evicted. Failure to do so can result in very unpleasant consequences and even criminal action. What can landlords do about unpaid rent during Covid 19? It may mean cutting your losses, for example if your tenant is in rent arrears, and reaching an agreement with your now unlawful occupier. Another option is to raise the rent. if they move out swiftly, you can get a paying tenant in as quickly as possible and your property can resume its rightful role as an income-earning asset for you. If, after the summons is issued, the tenant has still not made any attempt to pay the outstanding rental amount, you are within your right to cancel the lease agreement. Step 1: Decide whether to interdict or cancel. Copyright Private Property South Africa (Pty) Ltd. 1997 - 2023. By continuing I understand and agree with Property24's Terms & Conditions and Privacy Policy. proceed with a summons (interdict the tenant) or. Non-fungible tokens and intellectual property, Trademark Registration & Intellectual Property Law. Some landlords flat-out refuse to even consider this idea because it feels so wrong, but remember, Cash for Keys isnt personal; its business!. Many homeowners eventually wind up with a guest or. Firstly, the application must be made to either a Magistrates court or the High Court. Your rights and obligations as a property owner or tenant, Using your rental deposit during Covid-19 lockdown. It is always advisable to engage the services of an eviction lawyer when needing to evict a tenant. "Non-paying tenants may cause many problems for landlords however, it is clear that an aggrieved landlord has recourse and will not be short of options. Your email address will not be published. Although the tacit hypothec gives the landlord a bargaining chip, assets are not cash. Until you are absolutely certain the tenant is not coming back for their things, or sufficient time has passed to render it unlikely, keep the goods safe and sound. In fact, the Consumer Protection Act (CPA) grants tenants additional rights to allow them to cancel the lease agreement as long as a notice of 20 business days has been given. In summary, even though a landlord can determine what happens to his or her property, after agreeing with a tenant, under no circumstance does he or she have the right to evict the renter solely. 901 Mopac Expressway South, Barton Springs Rd Building 1, Suite 300, Austin, TX 78746, Texas Real Estate Commission Information about Brokerage Services, Texas Real Estate Commission Consumer Protection Notice. "The payment clause usually stipulates an amount and a date by which payments should be made. Read more: How to lawfully evict a non-paying tenant. If, on receipt of the eviction notice, the tenant still fails to vacate the property within the specified period, then the sheriff will be authorised to remove them and their belongings from the property. If the rental arrear is not substantial, e.g. The key is to make sure that you do have legal grounds to do so. Yes, Cash for Keys stings your pride. It may be some time before the landlord can recover arrears and costs. The longer you take to act on a late or missed payment, the longer it will be before you can legally evict a tenant who continues to miss payments. Oct 12, 2018 by Jorge Lopez | Leave a Comment. On top of that, you are unsure if you may evict your tenant legally, as you don't have a written lease agreement. The tenant should restore the property to its original condition at the conclusion of the lease, and this includes removing personal property. Simon is committed to serving his community and the less fortunate. Most of us have cash flow issues from time to time and landlords shouldnt generally worry when a solid tenant pays a few days late now and again. Evictions were prohibited under Alert level 5 and 4. Most importantly, the landlord must look at the payment clause together with the breach clause, advises property legal experts Abrahams & Gross. Houston, TX 77063 If your tenants are elderly, disabled, or women with young children, the court may allow extra time for them to vacate the property, to ensure they have time to find suitable alternative accommodation. This is why using a professional RE/MAX rental agent makes so much sense. If the tenant fails to respond to the summons the landlord is legally entitled to cancel the agreement and contact an attorney to start the eviction process. This process can take up to six months, during which your tenant can stay in your property and will probably still not pay rent. This however does not mean that they cant be evicted; it simply means that the correct procedures must be followed by the landlord or managing agent. You can send an intention to cancel the lease agreement. Here are five reasons you can evict a tenant: There may be other legal grounds for evicting a tenant, but these are the most common reasons. Credit checks will tell you about past solvency but they dont reveal anything about the character of the applicant. Please refer to our, Top 21 rent collection towns during lockdown, How landlords can meet tenants halfway, as 24% of rental market faces distress, Real estate professionals optimistic about the future of the rental industry, Landlord/Tenant: Tips on how to avoid conflict over rental maintenance and repairs, Here are 3 steps to help you resolve rental disputes, Revamp your kitchen on a budget: Smart strategies to save money on renovations, July interest rate announcement predictions | 7 money-savvy tips for homeowners and buyers, Invest in a piece of paradise: Coastal plots for sale in Franskraal and Hermanus. Dont let the possibility of a defaulting tenant stop you from making your investment property work for you - enlist the help of your local RE/MAX Office for a stress-free rental process. Part of the time frame is dictated by legislation: to cancel a fixed-term lease you must give the tenant at least 20 business days notice to rectify the breach. No yelling, no screaming, and no finger-pointing. If the tenant does not vacate the property, then you can take out a court order to evict them for breach of contract.

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