Unpaid rent: taking legal action

Private Property South Africa
Gunstons

There has recently been an increase in the number of recalcitrant, non-paying tenants, and attorneys are being tasked by landlords to deal with the problem. And it is important for landlords to understand that they should not resort to threatening their non-paying tenants but should rather take the legal route.

The Constitution and various case laws stipulate that all South Africans have the right to adequate housing, and this obliges the courts to consider legal proceedings carefully where the result may land a defaulting tenant on the street. Even so, it has been recognised that non-payment of rent is a breach of the lease agreement and those guilty of it will in the long run be called on to pay not only the money owing but also the interest on unpaid rents and the legal costs involved, provided that this has been covered in the lease agreement.

Some landlords have experienced back-threats from tenants, who withhold their rent to pressurise the property owners into taking responsibility for maintenance and repairs. But this is unlawful and constitutes a breach of the lease where a good lease agreement is in place. No matter what the problems or unsatisfactory conditions are, rent has to be paid on the due date.

The appropriate way for a landlord to enforce his rights is through the courts. This usually involves two sets of legal action. Firstly, the defaulting tenant can be sued for his rental arrears and, secondly, the landlord can institute eviction proceedings, whereby, once an order is granted by the court, a tenant can be forcibly evicted by the Sheriff of the Court if he does not leave voluntarily.

Unfortunately, following the rule of law can become a long, drawn-out process and an eviction can take up to three months. It isn’t all doom-and-gloom though, because the vast majority of evictions are eventually successful. Unfortunately, the costs involved in instituting legal action are frequently lost for good to landlords.

Therefore, it is of utmost importance that landlords do thorough credit checks before accepting new tenants and ensure that a deposit equal to at least two months’ rent is paid beforehand to cover unpaid rents and repairs.

Written in association with Ian Teague, Gunstons Attorneys

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