Covid-19 has left many in financially challenging positions, affecting many jobs and weighing heavily on household income. Many landlords have found themselves in a predicament where their tenants are no longer able to pay monthly rent.
According to Adrian Goslett, Regional Director and CEO of RE/MAX of Southern Africa, landlords cannot simply evict their tenants as they are protected by the ‘Prevention of Illegal Eviction’ from the ‘Unlawful Occupation of Land Act, No. 19 of 1997 (PIE Act)’:
“The act applies to the occupation of premises which constitute a dwelling, which in the case of a landlord and tenant relationship, would be the residential property. This act was introduced to ensure that tenants were protected from being unlawfully evicted from a property and that the correct procedures are followed during the process.”
Evictions were prohibited under Alert Levels 5 and 4. At Alert Level 3, it seems that landlords can issue notices for eviction, but they cannot enforce them. The below points explain the steps landlords should take before they can issue a defaulting tenant with an eviction notice:
Step 1: Communicate with your tenant
If the agreed-upon payment date has come and gone and you have yet to receive payment, contact your tenant immediately. If your tenant is facing financial difficulties, you can agree on a later payment date – however, you are not obliged to offer this.
Step 2: Provide your tenant with a notice of contract breach
If you have not received payment and your tenant has no plan to do so, you should send them a notice informing them that they have breached the lease agreement. Landlords should ensure that the lease agreement is comprehensive and in line with the Consumer Protection Act (CPA). According to the Consumer Protection Act, landlords are required to provide a notice of at least twenty business days to their tenants to allow them to rectify the breach.
Step 3: An interdict or a cancellation?
Should your tenant fail to rectify the breach within the given timeframe, you (as the landlord) has two options: to proceed with a summons or, to immediately cancel the agreement. If your tenant has still not made any attempt to pay the outstanding rental (after the summons has been issued), you are within your right to cancel the lease agreement.
Step 4: The eviction process
If the agreement is cancelled, the tenant will no longer fall under the protection of the PIE Act and he / she will be regarded as an illegal occupier. According to the PIE Act, the landlord will be able to evict their tenant legally. Once the lease is cancelled, you can initiate the summons proceedings and the eviction proceedings simultaneously. Landlords should contact their attorney to begin the eviction process.
Step 5: The eviction notice
The application to evict an illegal occupier must be made to either a Magistrate’s Court or, the High Court. If the application is unopposed, it can take between eight to ten weeks for the eviction order to be granted. It is common practice in South Africa to provide the tenant with at least another fourteen days to find new accommodation before the eviction order is executed.
“Don’t let the possibility of a defaulting tenant stop you from searching for an investment property. All landlords should ensure they take every precaution from the start to protect themselves and their investment. Before entering into a lease agreement, seek advice from an experienced real estate agent or attorney to avoid unnecessary situations with your tenants,” Goslett concludes.