Anyone who has ever been faced with having to evict tenants who are not paying their rent knows that it can be a long and frustrating (not to mention expensive!) process.
The process can prove to be even more frustrating if the steps leading up to and including cancellation of the lease agreement (which is a prerequisite to any eviction application being brought) have not been dealt with properly and in terms of the lease agreement and applicable legislation.
Below is an outline of the steps landlords should follow to ensure that, if the time comes to evict a non-paying tenant, the process is not unduly delayed as a result of incomplete paperwork.
Make sure your residential lease agreement complies with the applicable legislation
It is important to note that all residential lease agreements are governed by the Rental Housing Act 50 of 1999 (“the RHA”). The Act is very succinct and familiarising oneself with its contents is a must for landlords and tenants alike. Some fixed term residential lease agreements are also subject to section 14 of Consumer Protection Act 68 of 2008 (“the CPA”). In terms of section 14 of the CPA:
- A landlord may cancel the agreement 20 business days after giving written notice to the tenant of a material failure by the tenant to comply with the lease agreement (e.g. failure to pay rental amounts when due), unless the tenant has rectified the failure within that time. In other words: Should your tenant be in breach of the lease (which lease is for a fixed term and provided the CPA applies), you may only cancel the lease after having given the tenant 20 business days written notice of such breach and the tenant having failed to rectify the breach within such period.
What is therefore implied is that (provided the CPA applies to the lease agreement) all clauses in lease agreements which provide for immediate cancellation of the lease in the event of the tenant failing to pay the rental amount on the due date, or provide for a period of less than 20 business days within which to remedy the breach, are unenforceable.
Landlords should therefore ensure that their residential lease agreements are drawn up by an attorney specialising therein and that once the lease agreement has been properly signed and dated by all parties, to keep it in a safe place for future use.
Act timeously when a breach occurs
Should your tenant breach a material term of the lease agreement, for example fail to pay the rental amount when due, it is important to act swiftly and in terms of the provisions of the lease agreement.
For example: Should the rental amount be payable on the first of the month and you are not supplied with a proof of payment by your tenant, or the funds do not reflect in your account by said date, it is important to immediately notify the tenant in writing of his or her breach (“the breach notice”) and request that the breach be remedied within the time period as provided for in the lease agreement. Keep in mind that, should section 14 of the CPA apply to the lease, the tenant must be given at least 20 business days written notice within which to remedy the breach, regardless of what the lease agreement provides for.
Landlords should also ensure that this breach notice is delivered to the tenant using the method provided for in the lease agreement. Whether the lease agreement provides for delivery of notices by hand, registered post, fax and/or email, ensure that this is done properly and that the correct details are used as provided by the tenant. Keep proper record of delivery of such notices.
Cancel the lease when the tenant fails to remedy their breach
Should your tenant fail to remedy his or her breach by making payment of the arrear rental amount within the time period provided for in the breach notice (as outlined in step two above), you as landlord are entitled to cancel the lease agreement.
It is advisable to deliver a notice of cancellation of the lease agreement to the tenant, informing him or her of the cancellation and providing a date by which the property must be vacated, failing which a formal eviction application will be brought. Ensure that this cancellation notice is also properly delivered to the tenant as provided for in step two above and keep proper record of delivery thereof.
Bring an eviction application should the tenants fail to vacate the property
In some instances, tenants will disregard the landlord’s notice of cancellation and/or request to vacate and remain in occupation of the property.
As the Constitution of the Republic of South Africa provides that no one may be evicted from their home without an order of court, made after considering all the relevant circumstances, the only recourse a landlord has in such an instance is to approach the courts for assistance by way of an application for eviction of the former tenants, now “unlawful occupiers” as defined in the Prevention Of Illegal Eviction From And Unlawful Occupation Of Land Act 19 Of 1998 (“PIE”).
PIE regulates the eviction of “unlawful occupiers” from land which is used for residential purposes and the provisions thereof must therefore be followed whenever an order for the eviction of persons from a property used as a dwelling is sought.
What should be clear, is that before such eviction proceedings can be brought, the person(s) against whom the eviction order is being sought must first be rendered “unlawful occupiers”. An “unlawful occupier” within the ambit of PIE means “a person who occupies land without the express or tacit consent of the owner or person in charge.”
Before a tenant can be rendered an “unlawful occupier” and therefore before any eviction application can be brought in terms of PIE, the consent of the owner must be withdrawn, in other words, the lease agreement, in terms of which the tenant is granted occupation of the property, must be validly cancelled.
It is therefore of utmost importance that the lease agreement is cancelled timeously and in terms of the lease agreement and applicable legislation. Upon instructing an attorney to act on your behalf in any eviction application, he or she will first and foremost have to determine whether the above was in fact done. Should it transpire that, for example, your breach notice was defective, or not properly delivered, it will be necessary to re-do these steps, thereby losing valuable time and incurring unnecessary costs.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)