Evicting a tenant without following due processes, can become a legal nightmare.
When a tenant is in breach of the lease agreement, or has not vacated the property on time, landlords may be tempted to force an eviction. This can be a costly mistake, bearing in mind that laws exist to protect both the landlord and the tenant. Xpello, a breach management and eviction solution organisation, amicably negotiates for an agreeable solution, and, although primarily working for the landlord, it also considers tenant factors that may be in play, such as financial stress.
CEO of Xpello, Elize le Roux, answers the most common questions that landlords ask about the eviction process.
Q: Under what circumstances, can a landlord evict a tenant?
A tenant may be evicted if he or she refuses to vacate the property after the lease agreement was cancelled or who refuses to vacate the property after the lease agreement was not renewed. (Learn more about delinquent tenants)
Most lease agreements are cancelled due to the tenant breaching the lease agreement and failure to remedy such a breach on time or in full. The most common breaches are:
- Non-payment of lease obligations
- Contravention of body corporate rules
Q: What are the most important rights a tenant has and that a landlord should be aware of, when considering eviction?
The correct procedure must be followed before cancellation. The lease agreement and legislation prescribe the time, which is normally 20 business days. This allows the tenant time to remedy any breach before the lease is cancelled.
The landlord may not take the law into their own hands by attempting to force the tenant to vacate. The PIE Act (Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 1998) sets out the process which should be followed when evicting a tenant.
Q: What if these rights are not clear or even included in the lease agreement?
Legislation is applicable, in particular the Rental Housing Act 50 of 1999, and this is regardless of whether tenant rights are included in the lease agreement or not. The lease agreement, however, may not exclude these Acts.
Q: What if there is no lease agreement, or it has expired?
Currently a written lease agreement is not required. Most parties do not realise that a verbal agreement is acceptable and is in place when the parties have agreed on the property to be rented, the rental payable, and the term of occupation (even a fixed month-to-month term). It can be more difficult to cancel the lease if no terms were agreed to.
Where a lease agreement has passed the termination date but the parties have agreed that the tenant may remain in the property, the lease agreement continues on the same terms and conditions as the original lease agreement, but on a month-to-month basis.
It is, therefore, not necessary to sign a new lease agreement although it is crucial to ensure the lease agreement remains aligned to any new legislation.
Q: What recourse does a tenant have, if the landlord indicates that eviction is imminent?
If the landlord has followed the correct procedure in cancelling the lease and is entitled to cancel the lease, the tenant should not have a defence against an eviction. If they oppose the eviction process they risk being liable for the landlord’s legal fees and will be reported as delinquent tenants.
Xpello always advises tenants to be proactive: if they know they will not be able to remedy the breach, we recommend they enter into an agreement with the owner regarding when they will vacate. This is important if they do not want to tarnish their record to such an extent that they will struggle to find a new place.
Q: What is the process a landlord must follow to evict a tenant legally?
Proper procedure must be followed as per cancellation of the lease agreement, after having given the tenant an opportunity to remedy the breach.
Thereafter, the landlord should approach the court to apply for an eviction order. This process can be complex and Xpello highly recommends appointing an attorney who has eviction experience. Xpello has 25 panel attorneys nationwide, which their clients can confidently engage with in the eviction process.
Q: What is the process a tenant should follow, to avoid eviction?
Remedy the breach in time and in full: partial payment does not prevent cancellation of the lease agreement! My recommendation is that tenants should communicate with the landlord/agent to come to an agreeable arrangement if no longer able to afford the rent.
Landlords should also consider that it may be more beneficial to allow a tenant to simply vacate early instead of threatening them with a cancellation penalty. Often just the threat of a cancellation penalty causes tenants to remain in the property causing more financial loss.
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