If a landlord finds himself in a situation where a tenant is not paying his rent, then it is best to initiate legal action as soon as possible to avoid months of lost income in rent, says Michael Bauer, general manager of IHFM, the property management company.
This, however, does have its pitfalls and can take a long time to process, but there are few things that have to be remembered so as to follow the correct procedures and “do things by the book”.
A summons will have to be issued, stating the claim for the rent that is outstanding and it is issued via the court by a sheriff. There are, however, two types of summons that the landlord could have served on the tenant: an ordinary summons or a rent interdict.
If the landlord finds that the tenant ignores the summons, he can within ten days of it being delivered apply for a default judgement against the tenant, followed by an Ejectment Order to evict the tenant.
This might be defended by the tenant, so it is best to be sure that the summons is justified. If the landlord owes money to the tenant (perhaps he had paid for repairs that the landlord did not carry out and is waiting for the landlord to refund him) or if a complaint has been lodged with the Rental Housing Tribunal and the complaint relates to repairs that have been requested but not done – in which case the complaint is unfair practice on the landlord’s part.
“Tenants cannot just withhold their rent without going through the necessary steps to get the action they need from their landlord,” said Bauer.
Once the Rental Housing Tribunal is engaged both landlords and tenants must remember that a subpoena to a hearing from them is as important as a summons from the court and must be acted on. If this is ignored it can be at the risk of a default judgement or contempt of court charge.
Another thing to remember is that a ruling from the Tribunal is equal to a magistrate’s court ruling and that prosecution can follow if the subpoena is ignored.
“All legal processes should be avoided if possible, they are lengthy and costly. In most cases the employment of a good rental agent to vet and manage tenants is better than trying to do the job yourself. Good rental agents will check the prospective tenant’s record carefully as well as their references and credit record before signing a lease and this then helps avoid running the risk of rental disputes later.”