Eviction process
Evicting a tenant can be a complicated process, especially in South Africa, where tenant protection laws are strict. Landlords must follow the legal process outlined by the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE Act).
The PIE Act protects tenants from being evicted unfairly or without legal process. Landlords must obtain a court order to evict a tenant. The court will only grant the order if the eviction is deemed just and equitable, considering the tenant's personal situation and the rights of vulnerable groups like the elderly, children, and disabled persons. The act also requires landlords to provide adequate notice to tenants and allows tenants the opportunity to defend themselves in court.
Step-by-Step eviction process for landlords
The first step is serving the tenant with a Notice of Default. This informs the tenant of their breach of the lease agreement, such as non-payment of rent, and gives them time (usually 20 business days) to remedy the issue.
2. Lease termination
If the tenant fails to resolve the issue, you can proceed to terminate the lease agreement. This notice should include the final date by which the tenant must vacate the premises.
3. Apply for an eviction order
If the tenant does not vacate the property, the landlord must apply for an Eviction Order through the court. This requires documentation such as the lease agreement, proof of breach, and prior communications.
4. Court hearing
The tenant may oppose the eviction within five business days. If there is no opposition, or if the landlord's case is strong, the court may issue an eviction order.
5. Sheriff enforcement
Once the eviction order is granted, tenants are typically given 30 days to vacate. If they refuse, the sheriff of the court will enforce the eviction.
How to avoid eviction of delinquent tenants
Eviction should be a last resort for landlords. As André van Rooyen, Head of Sales at PayProp SA, advises, landlords and agents should focus on reducing risk, recovering rent, and maintaining relationships with tenants. Eviction is not only time-consuming and costly, but also emotionally taxing. Prevention is key.
Q&A: Tips for landlords to avoid eviction
Q: How can landlords avoid evictions from the start?
Prevention is better than cure when it comes to evictions. By vetting prospective tenants and proactively handling problems as they arise, landlords and rental agents can prevent evictions and save themselves time, money, and stress.Q: What should landlords do when tenants miss payments?
Send reminders immediately when rent is overdue. Using automated systems to track payments and send notices helps build a paper trail, which is useful for legal action if necessary.
Q: How can tenant vetting reduce the risk to landlords?
The first step is to place a low-risk tenant. To do that, agents and investors need to do the right checks. Agents will typically check credit scores, but this will only give a partial picture of a tenant’s propensity to pay bills. However, some rental payment platforms, such as PayProp, will allow agents to check a tenant’s rental payment history specifically (when that data is available), giving a clearer idea of how likely they are to pay on time and in full.Q: Is a damage deposit enough protection?
A damage deposit can provide some financial protection, but it should be carefully calculated. Typically, it should be 1.3 times the rent amount, and should be reassessed when the lease is renewed.
Q: How important is communication?
Written communication is vital. It creates a record that can be referred to in disputes. Regular check-ins with tenants and clear communication about expectations help maintain a positive relationship.
Q: What should landlords do if eviction becomes unavoidable?
If eviction is unavoidable, a Letter of Demand must be sent, followed by a Letter of Cancellation if the breach is not resolved. Legal advice is recommended before proceeding with a court application for eviction.
Q: How can tenant vetting reduce the risk to landlords?
The first step is to place a low-risk tenant. To do that, agents and investors need to do the right checks. Agents will typically check credit scores, but this will only give a partial picture of a tenant’s propensity to pay bills.
However, some rental payment platforms, such as PayProp, will allow agents to check a tenant’s rental payment history specifically (when that data is available), giving a clearer idea of how likely they are to pay on time and in full.
5 common mistakes landlords make that lead to trouble:
- Failing to provide proper notice: Not giving tenants the legally required 14 days' notice before initiating eviction can result in delays or the case being dismissed.
- Evicting without a court order: Attempting to remove a tenant without going through the legal process and obtaining a court order is illegal and could lead to fines or imprisonment.
- Disregarding the rights of vulnerable tenants: Courts take extra care in evaluating cases involving vulnerable groups (e.g., children, elderly), so failing to address their needs can result in an eviction being denied.
- Lack of documentation: Not keeping a detailed record of lease agreements, payments, and communication with the tenant can weaken your case if the eviction is contested.
- Taking illegal actions: Changing the locks or using physical force to remove a tenant without following the legal eviction process violates the PIE Act and can have serious legal consequences.
Following the correct process ensures landlords protect their properties while respecting the rights of their tenants.
Conclusion
While eviction may sometimes be necessary, landlords should strive to avoid it by using effective tenant vetting, maintaining good communication, and acting quickly when problems arise. Following the legal process carefully ensures that landlords protect their interests while adhering to South African laws.
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