A landlord’s guide to avoiding eviction traps
Are you a landlord with problem tenants? In our experience, landlords don’t want to evict their tenants. It’s time-consuming, unpleasant, and can be costly, both in the short and long term. There are costs associated with the eviction process, and your property might remain unoccupied for some time before you find suitable new tenants. But sometimes it is the best or only solution. If you’ve tried informal negotiation, mediation, and even pleading with your tenants to rectify whatever breach they have committed, you may be faced with no alternative but to evict. If you find yourself in this situation, how can you be sure you follow the correct process and avoid the pitfalls of eviction that can trip you up?
Legislation
Evictions in South Africa are governed by the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (“PIE”). In addition, the Rental Housing Act and the Consumer Protection Act (“CPA”) lay down the conditions that must be met before an eviction can proceed. Evicting a tenant is a complex and legally sensitive process. Avoid these mistakes for a hassle-free eviction.
Failure to provide proper notice
There are various pieces of legislation that describe the conditions that are required for a lawful eviction to go ahead. Importantly, sufficient notice must be given to the tenant in the correct manner. To evict a tenant a landlord must give the tenant notice of the breach and time to rectify the breach. If the breach is not rectified within the specified time frame, the lease can then be terminated. If the tenant does not agree to vacate the premises, the landlord may apply to the court for an eviction order. Failure to follow the correct procedures can result in the eviction being declared unlawful and dismissed.
Inadequate documentation
A well-drafted lease agreement is essential and records should be kept of all communications with the tenant, especially regarding rental arrears and notices. The legal burden is on the landlord to prove in court that the eviction is both just and right. Therefore, the existence of sufficient evidence to back up the claim will determine the outcome.
No valid reason for eviction
A landlord must have a valid and legal reason for evicting someone. Common reasons include non-payment of rent, breach of the lease agreement or the need to use the property for personal use. The eviction must be based on legitimate grounds.
DIY evictions
Landlords sometimes attempt to evict a tenant alone, without recourse to the courts. It is illegal for landlords to take the law into their own hands and forcibly evict tenants or cut off essential services such as water and electricity without a court order. Removing a tenant using threats, intimidation, harassment, or physical altercation opens the door for tenants to pursue criminal action against the landlord.
Incomplete maintenance and repairs
Failure to address maintenance issues promptly can be used by tenants as a defence during eviction proceedings. Owners have a responsibility to maintain a safe and habitable property and a landlord cannot purposefully make the property uninhabitable in any way. Landlords should complete essential repairs or maintenance promptly.
Failure to take legal advice
One of the most common eviction mistakes is failing to take professional advice. Consulting with a legal professional experienced in evictions and property law is crucial to navigating the eviction process correctly. Evictions are stressful and complicated for landlords; an understanding of the applicable laws is vital. The process can drag on and sometimes a landlord may take shortcuts, usually out of frustration. However, the consequences of not following the proper steps can be significant and result in further delays, costs, and possible legal action.
Consult an eviction specialist
Simon Dippenaar & Associates, Inc. is a law firm of specialist eviction lawyers in Cape Town, Johannesburg and Durban. We help landlords and tenants maintain healthy working relationships but, when necessary, we assist with eviction, ensuring it is effected legally and ethically. Contact one of our eviction attorneys on 086 099 5146 or simon@sdlaw.co.za if you need help with an eviction.