Your tenant is in breach of the rental agreement, now what?

//Your tenant is in breach of the rental agreement, now what?

Your tenant has stopped paying rent and not abiding by the rules, your first reaction is to cut the power or change the locks, stop!

Before you as the landlord can evict a tenant(s) from the rented property, it is important to comply with legislation and to avoid any infringement on the tenant’s constitutional rights. In a frustrated state it would seem like the best and easiest option to merely cut the power or change the locks to prevent the tenant(s) from regaining access to the property, but this will be unconstitutional. Before an unlawful occupant may be evicted, a court order must be obtained to order such eviction from the rented property.

The procedure to obtain such a court order is prescribed by the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (hereinafter referred to as “the Act”), more specifically section 4 and 5 thereof.

Before a court will grant an order for eviction, all relevant circumstances together with section 6(3) of the Act must be considered to ensure that such eviction is just and equitable. The court will give special regard to the rights of children, the disabled and the elderly. After considering all the relevant circumstances the court may then decide to order eviction from the rented property, but it has a wide discretion regarding the date, on which the unlawful occupant(s) must vacate the property.

It is clear from the aforementioned that there are a few steps to follow in order to comply with the Act and to prevent unlawful evictions, such eviction can last up to three to four months. This however, depends on whether the lease has been validly cancelled, the court date allocated by the clerk of the court, whether the application is opposed and the date of eviction, which was ordered by the court.

If the unlawful occupant opposes the application, you might want to negotiate a settlement, in terms of which the occupant agrees to vacate the rented property by a specific date. Why would you want to do this you ask, well if the eviction application is opposed, the unlawful occupant may decide to continue to live inside the rented property, rent free, for the next three to four months until the finalization of the court proceedings and until judgment is handed down. Also bear in mind that you will have to incur legal costs in order to obtain an eviction order.

By reaching settlement with the tenant you will be able to put a paying tenant in your property much sooner, without having to incur unnecessary legal expenses.

In conclusion, as a landlord it will be very tempting to take the law into your own hands and to end your non-paying tenant’s free ride. However your actions could have serious and very costly consequences. If you are unable to reach settlement with your tenant as proposed herein, then the legal way is the only way to proceed.

By: Ruan du Preez
B.Com Law & LLB (NWU)

Note: The content of this discussion is intended to provide general information to the subject matter. Specialist advice should be sought about your specific circumstances. Further questions to this subject may be directed to the author directly.