When should a landlord start the eviction process?

Many landlords will have at some time found themselves in the situation where their tenant cannot afford to pay the rent and in most cases the tenant will leave voluntarily. But what happens if the tenant refuses to move out?

“We find that some landlords are too lenient, giving their tenants chance upon chance to rectify the situation. Tenants can make many empty promises, which results in big rental losses. The best is to remember that this a business transaction, leave emotions out of it to a point, and also follow the guidance of the rental managing agents as they are the ones dealing with the tenant from day to day,” says Sunell Afrika, rentals manager for SAProperty.com.

“It is important that as soon as there is breach in the contract, that is, if the tenant has failed to pay the rent or has gone against any of the conditions stipulated in the lease, the landlord has the right to put the tenant to terms notifying him that he will cancel the lease if the breach continues,” she says.

The warning should be in the form of a written letter, to remedy the breach within whatever time frame is stipulated under the breach of contract section of the lease, or 20 days according to the Consumer Protection Act. If the tenant does not remedy the breach in full, the landlord can then start the process of cancelling the lease.

If the lease is cancelled, but the tenant refuses to move out, the landlord would then start the eviction process.

The landlord cannot take the law into his own hands and lock the tenant out, nor can he enter the premises and claim items that belong to the tenant to sell in lieu of rent that is due, as this would be theft, she says.

It can take some time to evict a tenant, and an attorney has to apply for an eviction order.

Once this has been issued, the sheriff of the court will serve the notices, one to the tenant and the other to the local municipality. Fourteen days’ notice has to be given that a hearing will be taking place.

The tenant will be able to state his case at the hearing as to why he should be able to remain and that an eviction order cannot be granted, says Afrika. It has to be remembered that the courts will only grant the eviction order after considering all the circumstances and have established what is just. If there are special circumstances, such as a single mother with children, the courts may not grant an eviction order straight away.

“The courts tend to regard carefully the rights of the elderly, children, those with disabilities and households headed by women. They will use their discretion as to what date the tenant will have to vacate the premises and when the eviction order is to be effected, she says.

“While nothing is ever guaranteed,” says Afrika, “if the correct checks are carried out before signing a lease with a tenant, it reduces the risk of a bad tenant being placed. By ensuring the tenant’s financial status, previous rental track record, financial behaviour and references have all been positive, there is less chance that it will end in a case of having to chase the tenant for rent each month or that he cannot afford to live in the unit. If, for whatever reason, the tenant falls behind in his rent, the landlord must take action immediately and not wait for matters to rectify themselves, as he must protect his asset and future income.”

Call Sunell Afrika on 073 002 6481 or email sunell@saproperty.com.