This guide for landlords explains in simple terms the tenant eviction process in South Africa and the rental housing legislation you must comply with. It also discusses some related issues that might be helpful to landlords.
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Introduction to landlords’ guide to eviction
Simon Dippenaar & Associates is a general practice of attorneys offering a one-stop, comprehensive range of key legal services. We have particular expertise in rental housing law and the eviction process. We represent both landlords and tenants and firmly believe that the tenant’s right to adequate and comfortable housing must be balanced with the landlord’s right to receive a fair rental and respectful treatment of the property.
Founder Simon Dippenaar has a BBusSc LLB degree and Professional Diploma in Legal Practice from the University of Cape Town, and is an admitted attorney of the High Court of South Africa, with offices in Cape Town, Johannesburg and Durban, representing South African and international clients.
Simon is widely published in the area of eviction law and has been a key speaker at seminars, most recently debating the Deputy Minister of Public Works Jeremy Cronin regarding the Expropriation Bill. Simon is committed to serving his community and the less fortunate. He is on record in one of South Africa’s biggest mass eviction cases in Marikana, representing, pro bono, the unlawful occupiers and their constitutional right to adequate housing.
With our reputation for high EQ, win-win solutions, you can be assured of expert, highly personalised attention, discretion and total commitment.
In very simple terms, eviction is the act of expelling someone from a property. However, in legal terms, it is a bit more complex. Rental housing law and tenants’ rights are covered in several pieces of legislation, and a landlord wanting to evict a tenant must follow the correct procedure. Failure to do so can result in very unpleasant consequences and even criminal action. It is always advisable to engage the services of an eviction lawyer when needing to evict a tenant.
Eviction vs. cancelling a lease
It’s important to understand the distinction between cancelling a lease and evicting a tenant. A lease cancellation is the conclusion of a civil contract between two individuals, for a valid reason. Either party may cancel the lease, and the terms under which this can be done should be set out in the lease.
The landlord may cancel the lease due to a breach of the rental agreement by the tenant. In this case, the landlord must give the tenant notice of the breach and a chance to rectify it…for example, if there are rent arrears, an opportunity to make good the rent due. This is done by way of a warning in writing, giving the tenant a specified amount of time in which to remedy the breach. The time frame will be determined by the terms of the lease, or if not specified it will be 20 working days, in accordance with the Consumer Protection Act (CPA). If there is no written lease, the landlord must give a full calendar month’s notice. If the tenant rectifies the breach, the matter is finished and harmony is restored.
However, if the breach is not remedied, the next step is a letter of cancellation served on the tenant by the landlord. This is still not eviction. The need to evict only arises when the tenant does not vacate the premises in accordance with the lease cancellation.
Who can evict?
Landlords may not take matters into their own hands and evict a tenant without a court order. 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. The cost of this will be borne by the tenant. The landlord may not change the locks, physically remove personal property, or behave in a threatening way toward the tenant, however recalcitrant the tenant may be. Only the sheriff may take any physical action against the tenant.
Rental housing legislation
Rental housing legislation is covered by several acts:
- Rental Housing Act
- Rental Housing Amendment Act 2014
- Prevention of Illegal Eviction Act – PIE
- Extension of Security of Tenure Act – ESTA
- Consumer Protection Act – CPA
Where the provisions of one are more generous, i.e. offer more protection to the tenant, that act prevails. In most cases the CPA has the last word.
Tenant eviction process
Three tenant eviction procedures
The correct tenant eviction process needs to be followed for an eviction to be lawful. If the attempted eviction is done incorrectly, as per the Prevention of Illegal Eviction Act, then this will at the very least cause costly delays, and at worst the landlord can be imprisoned. There are three tenant eviction procedures:
- Normal eviction process
- Urgent eviction process
- Organs of state specialised eviction process
The majority of evictions are normal evictions. However, if you can prove, among other things, that imminent harm will be caused by your tenant if they are not quickly evicted, then an urgent eviction may be available to you. We can advise you on your specific circumstances.
Normal eviction process
The process, outlined below, begins when the tenant seriously breaches the lease agreement. These steps must be followed exactly as described. If a landlord evicts a tenant without a court order, the tenant may institute a private prosecution. If found guilty and convicted, the landlord may receive a fine or even face a prison sentence of up to two years.
- Landlord serves notice to the tenant to rectify the breach.
- If the breach is not rectified, the landlord can terminate the lease contract and give a date by which to vacate the premises.
- If the tenant fails to vacate, the landlord gives notice to the offending tenant of the intention to evict the tenant through the courts.
- Landlord applies to court to have a tenant eviction order issued to the tenant.
- The court issues the tenant eviction order to the tenant and the municipality that has jurisdiction in the area 14 days before the court hearing.
- Court hearing takes place. The tenant may put forward a defence.
- If the defence is valid, a trial date is set. If there is no valid defence, a warrant of eviction is issued to the sheriff, giving authorisation for the sheriff to remove the tenant’s possessions from the premises.
- A trial begins or the court sheriff removes the tenant’s possessions from the premises.
What rights does the tenant have during the process?
Even if your occupier has not been the model tenant, you are still required to treat them with dignity and respect during the lease cancellation and eviction process. Changing the locks, removing the front door, sending someone intimidating around to collect outstanding rental or “persuade” tenants to move, or disconnecting utilities are all illegal. In terms of the Rental Housing Act, unlawfully shutting off the utilities to a rental property is an offence and you may be liable to a fine or imprisonment of up to two years, or both. Changing locks, cutting services or making a property uninhabitable amounts to constructive eviction, which is illegal in terms of the RHA.
Furthermore, PIE gives special consideration to vulnerable people. 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.
How long does the process take?
Eviction can be a long process. It’s in your interests if at all possible to avoid going to court. It may mean cutting your losses, for example if your tenant is in rent arrears, and reaching an agreement with your now unlawful occupier. 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.
However, if you are committed to seeing the process through, be prepared to dedicate from six weeks to 18 months of your life to the eviction. 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. On day 21, if the breach has not been remedied, you may send a letter cancelling the lease and giving a date by which the premises must be vacated, as described above. 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.
If the eviction order is opposed, the case can drag on considerably. 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.
The costs will depend on the nature of the eviction. An opposed eviction that results in a prolonged court case can be very expensive, costing up to R100 000. An unopposed eviction costs between R5 000 and R25 000.
A good eviction lawyer is essential
You may be tempted to go it alone and handle your eviction yourself, but hiring an experienced eviction lawyer is the best way to improve your chances of obtaining a successful eviction. An eviction attorney will minimise potential negative outcomes that can harm you, your family, or your business.
An expert eviction lawyer can quickly and efficiently navigate the complexities of eviction law, especially considering the vast tenant protections offered in South Africa today.
Recovering lost rent
As with anything in business, it’s important for landlords to weigh up the costs and benefits of any action taken. Eviction itself may not result in settlement of the outstanding debt. To recover your rental arrears, you may have to take to the courts and sue your tenant. Lawsuits are expensive, time-consuming, and stressful. If there is any other option for recovering money you are owed, a good eviction lawyer will usually advise you not to sue.
If a tenant falls into rent arrears, common law grants the landlord “tacit hypothec” over the tenant’s goods on the property. What does this mean in plain English? The provision for tacit hypothec is enshrined in Section 32 of the Magistrates’ Courts Act. Section 32 allows a landlord to apply for the attachment and, in certain circumstances, for the removal of a tenant’s movable goods in the leased premises, in lieu of rent owed. A landlord may choose to invoke Section 32 because it can be more effective than a rent interdict summons. Understandably, tenants will not want to see their possessions impounded and may respond more swiftly to this threat than to an interdict for payment of arrears.
On the other hand, there are legal costs involved. Although the tacit hypothec gives the landlord a bargaining chip, assets are not cash. It may be some time before the landlord can recover arrears and costs. If all else fails and the landlord takes the tenant’s goods to auction, to realise the rental arrears, the sheriff costs can be in excess of R5 000. There are also storage costs to consider while holding the goods as collateral.
Cut your losses?
If the rental arrear is not substantial, e.g. R10 000 – 15 000, it may not be worth pursuing. If the proper procedures are followed, i.e. the tenant is given a chance to rectify the breach of the lease agreement, and the rent is still not forthcoming, it may be best to begin the eviction process and leave it at that. 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.
Dealing with tenant’s property left behind
Tenant property is defined as any personal possessions, owned by your tenants or their guests, that they have moved into or onto the property. The property includes any outbuildings, such as a garage, and even the garden area. The tenant should restore the property to its original condition at the conclusion of the lease, and this includes removing personal property. However, tenants do sometimes leave unwanted items behind, and unfortunately your final joint inspection won’t reveal these, as the walk-through is usually done before the tenant moves out.
If it is clear your tenant has moved out for good, there is no ambiguity. But if the situation is not clear-cut, for example if the tenant has simply disappeared, leaving some belongings behind, you cannot simply dispose of their personal property. You have a duty to try to track down the tenant. If you can’t reach them via cell phone, check the references provided when the lease was signed. Contact the employer or previous landlord. Use any contact details you hold for the occupant and exhaust all possibilities. You must be able to demonstrate that you tried in good faith to find the owner of the personal property.
By law, if “movables” have been left behind and you have taken reasonable steps to be sure the tenant has permanently left the property and abandoned the movables, you are within your rights to sell or dispose of the items as you see fit. In South African law, unowned things are considered “fair game”. But it is the determination of “abandonment” that is problematic. Although not a legal requirement in South Africa, you would be wise to store the belongings for a reasonable amount of time, safely and securely, and allow the tenant to reclaim the items within that time frame. While the personal property is in your hands you are liable for it and you don’t want to risk a damages claim. 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.
Tips to avoid having to evict
In an ideal world, you want to avoid ever having to evict a tenant. We don’t live in an ideal world, but these tips will help to reduce the likelihood of having to travel down the eviction road.
Tenant screening is a critical aspect of property management. Credit checks will tell you about past solvency but they don’t reveal anything about the character of the applicant. Reference checks can be faked, so it’s important to screen the tenant personally and carefully. Follow these steps to ensure your tenant verification is legitimate:
- Always ask to see original ID. Photocopies can be forged.
- Verify employment history. When contacting an employer, call the main office line listed on a website (not a cell phone). If this is not available – some tradespeople work from cell phone numbers as they are moving around all day but are still bona fide employers – ask them to send you an email from their company email address as proof of legitimacy.
- Call past landlords. If possible, contact the landlord two or three tenancies past. The existing landlords may be keen to get rid of the tenant, and therefore give a good reference!
- Reference check all adults who will be living in the property, not just the person signing the lease. Be sure to ask the main tenant how many people in total will occupy the property and what their names are.
- Keep a record of your property conditions and tenant interactions. Conduct regular inspections. Frequent inspections will keep the tenants on their toes. It will also allow you to spot potential breaches of the lease. If you fail to visit the property regularly you may actually encourage property damage because your tenants aren’t being held accountable.
Have a good lease
A written lease will prevent disputes over ‘who said what?’ and will become a legal requirement when the Rental Housing Amendment Act comes into force. Putting everything in writing will clarify the terms and conditions of the rental agreement and ensure you have captured all the minutiae that can lead to conflict if not addressed at the outset. Are pets allowed? Can your tenant let the spare room for cash? What date in the month should the rent be paid? Spell everything out so there is no doubt on either side.
What information should be included on the lease?
- Your name and your tenant’s name
- Your postal address
- Your tenant’s postal address
- The address of the property being leased
- The agreed rent, the amount of increase and when it may increase and the frequency of payment
- The amount of any deposit
- What each party is responsible for, e.g. utilities, maintenance, etc.
- The notice period for quitting the property (applicable to both parties) and the conditions under which you can end the agreement early
- If there are ‘house rules’, such as no loud parties, they should be signed by both parties and attached to the lease
- A list of defects drawn up during a joint inspection when the tenant moves in. This should be signed by both parties and attached to the lease
Maintain a healthy landlord/tenant relationship
Finally, avoiding disputes is better than settling them. These tips should ensure a smooth and happy tenancy for both landlord and tenant:
- When moving into the property, the tenant and landlord should inspect the property together, and list in writing the existing defects. Both parties should sign this list.
- When moving out of the property, conduct an inspection together again. Draw up a list of defects and compare this to the initial list.
- The tenant has the right to repair all the damages before the landlord claims for it. 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.
- If the tenant chooses not to repair the damages, the landlord may do so by subtracting these costs from the deposit paid.
- All receipts paid for repairs should be kept as proof.
- 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.
- It is the landlord’s responsibility to ensure the tenant initials the relevant clauses where upgrade, upkeep and maintenance responsibilities are discussed.
- The landlord is responsible for ensuring the property is “habitable” before the tenant moves in.
- The landlord should insist that all municipal accounts are posted to them rather than the tenants, even though the tenant may be responsible for paying these. This ensures that unpaid utilities don’t go unnoticed, leading to problems later on.
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For more information on any of the issues described in this guide, or to discuss your personal situation in complete confidence, contact Cape Town attorney Simon on 086 099 5146 or email email@example.com.
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