So your tenant has decided that he can’t afford the rent on the property you own. In the good old days this dilemma was easily dealt with and in some cases simply changing the locks solved the problem pretty quickly.
Times have changed and landlords who take the law into their own hands could land in a whole heap of trouble and end up with a dispute that could not only end up in court, but with the backlog in our judiciary, may take years and a great deal of money to resolve.
Essentially the PIE (Prevention of Illegal Eviction and Unlawful Occupation of Land Act 19 of 1998) offers tenants far more protection than ever before. Tabled in Parliament in an effort to protect squatter’s rights, tenants have become far more aware of their rights and there have been instances when the Act has been used as a way of avoiding paying rent. As things stand, property owners can evict illegal tenants – it is just far more difficult than before and knowing and understanding the law before you lease out property has become more important than it was in years gone by.
Although many of us cannot imagine a situation arising where the tenant not only refuses to pay the rent, but also refuses to move out. This state of affairs is far more common than we think. The inner city of Johannesburg bears testimony to what can happen when tenants are left to their own devices and while those renting an average home in the average South African suburb may not be regarded as a high risk, there are tenants out there that will take every advantage of the rights afforded to them by the legislation.
For this reason, anyone who leases out property needs to become acquainted with the Act. Knowing your rights has become vital and acting quickly and decisively when a tenant defaults on a rental payment is essential. Although it is recommended that a property owner, particularly those who own property in a remote location, utilise the services of a local agent; even those who own property closer to home may find it easier to use a qualified experienced rental agent. As important as it is to find the right tenant, given the complexity of renting out property these days, it is also advisable to vet the agent of your choice carefully to ensure that they have the knowledge of how to proceed when things go wrong.
Regardless of whether the landlord has chosen to use an agent or go it alone, a lease agreement should state that the moment a tenant defaults on a payment – steps will be taken to rectify the problem. In the case of non -compliance, the lease should state that an eviction order will be sought. In order to evict, an application must be made through the courts. The order has to be served by the sheriff, and the tenant cannot lawfully be evicted until so ordered by the court. If, however, the tenant still refuses to move once the order has been granted the police can remove the tenant. This, unfortunately, can take anywhere from one to three months.
There is yet more bad news as far as landlords are concerned. Tenants can appeal the court’s decision and by following correct procedures, can state their grievance at a rental tribunal or arbitration.
According to the Rental Housing Act of 50 of 1999, the tenant has the right to request a hearing in the event that they believe that they have been treated unfairly. It is this plus the newly-introduced Consumer Protection Act that puts the ball firmly in the tenants court. Under this legislation the law states that in the event that the tenant can no longer afford to pay, they merely need to furnish 20 days’ notice of intention to cancel, and make the landlord a "reasonable offer" in terms of compensation. What constitutes a “reasonable offer” is yet to be interpreted by the courts.