Property Poser: Evicting a Non-paying Tenant

www.MyPE.co.za: The
scenario presented to our panel of experts this week relates to a
tenant who has not paid rental for some time.

Our reader, the landlord, has given him some breathing space, but has
now put the tenant on terms and insisted that he pays at the end of the
month.

The question he now asks is what happens if the tenant still does not
pay. Can our reader demand that he moves out immediately because he is
in breach of the lease agreement?

Charlotte VermaakCharlotte Vermaak
from Chas
Everitt Port Elizabeth
says a lease agreement should contain
a provision saying what constitutes a breach of contract.

“For example, if the tenant does not pay the rent on time and what the
landlord’s rights would be in such a case. This may include cancelling
the lease without further notice.”

Unfortunately we do not know whether a written lease exists between the
parties, as such a contract could contain the procedure when giving
notice to a tenant for non-payment, according to Vermaak.

“It is possible that the landlord and tenant agreed verbally on terms
for termination of the lease, in which case these would apply.”

Vermaak says another common provision often contained in lease
agreements provides that the party in breach has time to rectify the
situation by, for example, paying the overdue rental.

“In such instance, the provisions of the breach clause must be followed
before the lease may be cancelled. If the lease does not contain a
cancellation clause, it is good practice to write a letter giving the
tenant seven days to pay, failing which the lease may be cancelled.”

Once the lease has been cancelled, the question turns to how our reader
can go about evicting the tenant, assuming the tenant does not leave
voluntarily. The answer, says Vermaak, lies in the so-called PIE Act
or, more formally, the Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act of 1998.

Rian du ToitRian du Toit
from Du
Toit Strombeck Attorneys
in PE says in terms of the
provisions of this act, no one may be evicted from a property without a
court order. “Even if our reader turns to the Rental Housing Tribunal,
he will not circumvent the requirements set out in the PIE Act.”

The impression is often gained, says Du Toit, that unlawful tenants are
offered more protection than the landlord in terms of this act.

“Its provisions do not remove the landlord’s remedy of eviction. It
simply provides for a procedure to be followed, giving notice to
various parties of the intended eviction.”

A landlord wishing to evict an unlawful occupier has to institute
action to initiate the procedure to evict, according to Du Toit. “A
notice authorised by a magistrate must be served on the unlawful
occupier as well as the municipality – at least 14 working days before
the hearing in respect of the eviction.

“This obviously allows the tenant to possibly oppose the action. At a
hearing the court will determine whether the landlord is entitled to
evict the tenant.”

Du Toit says the PIE Act contains reference to issues to be considered
by the court, including the rights and needs of children, the elderly
and households headed by women.

“If the court does find that the landlord is entitled to an eviction
order, it will assign a date upon which the unlawful occupier must
vacate the premises. The landlord may call in the assistance of the
sheriff to remove the occupiers.”

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courtesy of Coetzee Gouws from Full
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