Cape Town - Being a landlord is a serious responsibility.
Your property may be an income-earning asset to you, but to your tenants it is their home. So what do you do when your tenant fails to pay the rent and winds up in breach of the lease agreement?
Attorney Simon Dippenaar of Simon Dippenaar & Associates sheds some light on the topic:
You do have a lease, right?
Although it is not a legal requirement to have a written lease, it is strongly recommended. The lease should spell out all the terms and conditions – for both parties – of the tenancy. It provides protection to both landlord and tenant in the event of either party reneging on their obligations.
Your lease should have a breach clause in it detailing the consequences of breaching any of the terms of the lease. It is up to you how much leniency you wish to exhibit.
If a tenant is a day or two late with the rent one month and they are otherwise a good tenant, it is likely that either the bank has made a mistake or some other accident of human error has occurred.
Give your tenant a call and let them know you haven't received the rent. This usually sorts the problem. But if the rent is still not paid, or if you have experienced repeated incidents of this nature with no explanation and the rent is now in arrears, your tenant is in breach of the lease agreement. You are legally entitled to start eviction proceedings. It is, however, essential you follow due process.
Protection for tenants
Historically, poor tenants had little power against unscrupulous landlords, so the Prevention of Illegal Eviction Act (PIE) 1998 was enacted to provide tenants with some security and protection against unprincipled property owners.
It ensures that "no one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property; and no one may be evicted from their home, or have their home demolished without an order of court made after considering all the relevant circumstances".
Special mention is made of the rights of the elderly, children, disabled persons and households headed by women, so that these vulnerable groups are not further disadvantaged by undue threats to the security of their homes.
Before undertaking a formal eviction process, it is good practice to send a notice to the tenant informing them of the breach of the lease agreement, with specific reference to the breach clause included therein.
If you want to give your tenant a reasonable chance to put things right, the letter can offer seven days to pay. Only if no action is taken in that time will you cancel the lease. Many tenants will take a "lawyer’s letter" more seriously than one from the landlord alone.
What is the eviction process?
Hopefully sending the letter will be the end of the matter and a satisfactory landlord/tenant relations will resume.
However, should you need to take things further, bear in mind that a landlord may not simply evict a tenant.
You may seek a court order to evict if your tenant is in breach of contract. Remember that a lease agreement also falls under the Consumer Protection Act (CPA), so whatever you may have stated in the breach clause, you must give at least 20 business days’ notice to the tenant to rectify the breach before the agreement can be cancelled.
If the notice period expires without payment being received, you may then proceed to issue a summons with an automatic rent interdict. If the tenant still fails to pay the rent after receiving the summons, you are legally entitled to cancel the lease agreement.
The tenant has forfeited the protection of the agreement and has become an illegal occupier of the property. You are now acting within the terms of the PIE Act if you evict.
Who can help?
Apart from consulting an attorney, the Rental Housing Tribunal can advise you of your rights and responsibilities as a landlord and can help in the event of a dispute with a tenant.