Bad tenants: landlords' options

Johannesburg - Interest-rate cuts may be a relief for homeowners, but the slowing economy will still leave many tenants defaulting on rental payments as they juggle their ever-increasing debt.

Fin24.com spoke to Greg Vermaak, a partner at property law specialist firm Moodie & Roberston, who outlined the legal options available to homeowners and landlords.

The landlord must give notice promptly, in terms of the lease, for any kind of default. "Speed is everything. Every month passed is a bond payment missed," says Vermaak. Landlords and homeowners must be in a situation where they can cancel the contract as soon as possible.

If tenants do not comply with the notice, landlords must formally terminate the lease and demand the return the of premises. If they do not vacate the land, landlords can institute eviction proceedings.

This can be done either by application or summons. "Taking the application route, you're likely to get to court a lot sooner," says Vermaak.

To apply for an eviction application, you need to prepare an affidavit which simply specifies:

• the owner of the premises,
• the occupier of the premises,
• the fact that the lease has been cancelled, and
• the fact that the owner of the premises wants the tenant to vacate the property.

"It's very simple for a residential house; obviously with an inner city block of flats, it becomes more complicated," says Vermaak.

This application is then served by the sheriff. After the tenants have received notice of the eviction application, they have five days to indicate if they will oppose it.

If they do not oppose the application, the owner of the premises must return to court to have a notice approved according to the Prevention of Illegal Eviction and Unlawful Occupation of Land Act (PIE).

Should it be approved, the tenant will receive this notice from the sheriff, indicating that eviction proceedings are pending and will be heard in court on a specific date.

On the court date mentioned, the matter is heard by a judge who considers the application and decides if an eviction order willl be granted.

"If the formalities have been followed and there doesn't appear to be any defence on the merits of the case, the court will grant an eviction order," says Vermaak.

"At least 5% of eviction cases are thrown out because the PIE formalities have not been followed. Less than 5% are dismissed because improper formalities of ending a lease have been followed. Ultimately if you do the formalities right, you'll get your order. It's very likely."

If the court grants the order, it will also provide a date by which the tenant must vacate the property. The landowner is only able to instruct the sheriff to physically remove the tenant once this date has passed. "It's all about how much an evictee has to lose - potential damage to property or reputation. But people do push it until the end," says Vermaak.

If notice is given of intention to oppose the eviction application, the tenants have 15 court (working) days to file an affidavit opposing the eviction.

"Reasons for opposing an application could be that the lease was not properly terminated or the formalities weren't followed," says Vermaak.

The landlord has a further 10 days to file a reply. Once the reply has been filed the tenant must appear in court according to the PIE Act. "It will take a minimum of 11 weeks if opposed before landlords can get to court; if unopposed, six to seven weeks."

Then the tenant will tell their story, if there is no technical or legal defence then the eviction will be granted and time will be given to vacate the property. If there is a valid defence, the application will be refused.

"PIE attempts to regulate the fundamental conflict between constitutional rights of land owners and the constitutional rights of access to accommodation. This conflict only becomes a real problem with very poor tenants," says Vermaak.

"Most importantly, there is no obligation for the landowner to provide alternative accommodation if they choose to evict tenants, nor is there ever likely to be.

"If there is any obligation to provide accommodation, it is for the poorest of the poor and then this is the obligation of the state," says Vermaak.

- Fin24.com