30/08/2023
Evictions - The Landlords Nightmare
It is the conception that owning a second incoming-earning property in South Africa has become a chore. Second property homeowners have either begun to sell their properties or are constantly complaining about problem tenants. South Africans are hesitant to purchase second income earning properties due to several complaints from property owners that evictions are too complicated, long, expensive and that the law favours the tenant.
This article is written to address all those concerns and to explain the process of eviction to homeowners to assist in making the decision of whether to purchase, retain or sell your second income-earning property.
When discussing evictions there are two very different but important rights that must be discussed. These are:
1. The right to housing contained in Section 26 of the Constitution of the Republic of South Africa; and
2. The right to ownership of property, which includes the right to occupation of the property contained in Section 25 of the
Constitution of the Republic of South Africa.
It is perceived that these two rights stand at loggerheads when speaking about a landlord and tenant relationship.
This is not necessarily the case; it must be borne in mind that the right to housing is a right granted to every South African by the Constitution and must be upheld by the Government. This is not a right for a property owner to fulfill.
That being said your rights as a property owner are not without limitation in that you cannot arbitrarily remove a tenant from your property, an eviction process must be followed that is governed by the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 1998 (hereinafter referred to as “PIE”).
The first step to bringing about an eviction is to formally cancel your lease agreement with a written letter of cancellation. The letter must give the tenant notice that the lease has been cancelled and that they have a certain number of days to vacate the premises. The number of days given is generally governed by your lease agreement, alternatively, a reasonable time is given which can be anywhere between 14 days and 1 month. When this letter is sent, proof that the person received it must be retained for the court application.
It is important to remember that the lease agreement is very prescriptive in terms of how the lease may be cancelled and on what conditions the lease may be cancelled. A great example of this is there are certain leases that contain clauses that require 3 consecutive material breaches before the lease may be cancelled, whereas certain leases only require one material breach, and the lease can be cancelled. The importance of ensuring that the terms in the lease agreement are fair but adequately protect the landlord cannot be overstated for a property owner.
In the event that the tenant refuses to leave despite the notice to vacate, an eviction will have to be sought in court. There are 2 ways to obtain an eviction order, which include an application procedure and/or an action procedure by way of a Summons.
The more common procedure is the application procedure and for purposes of this article, the application procedure will be discussed.
In the event that the tenant refused to leave, a Notice of Motion and Founding Affidavit must be drafted, setting out: who the owner/owners of the property are; the material terms of the lease agreement and/or verbal agreement; the breach of the agreement; proof that the lease and/or right to occupy was cancelled; that there is alternate accommodation available in the tenants price range in the area; whether the household of the tenant, has children, elderly people and/or is headed by a women; a housing report from the municipality.
The next question you might have, is why must I find alternative accommodation if it is the Governments duty to fulfil the right to housing. To that, I would answer that it is not your duty to find alternative accommodation but to rather show to the Court that there are alternatives available and that your premises is not the only option of having a roof over their head.
After the Notice of Motion and Founding Affidavit has been drafted, this must be issued at court and served on the tenant. The tenant then has an option to serve their intention to oppose the matter. If they oppose the matter, the tenant must serve their Opposing Affidavit, setting out their version of the matter. You, as the Applicant, then can respond to their Opposing Affidavit by means of a Replying Affidavit.
Once the above process has taken place, you as the Applicant would have to do a further application in terms of Section 4(2) of PIE, which is essentially requesting the court’s permission to serve a Notice on the tenant, advising them that an application has been made against them, a brief summary of the facts and the date of the hearing.
In the event that the tenant does not serve a Notice to Oppose, the same Section 4(2) application will have to be made in order to serve the Notice, as the tenant is still entitled to appear in court to make verbal representations.
In addition to the Section 4(2) Notice, a Notice of Set Down must further be served on the tenant, confirming the date on which the matter will be heard in court.
Once the matter is in court, the tenant can attend at the court hearing to plead their case. The Court will then take all factors into account, including whether the home is a women-headed household, or whether there are elderly people or children residing in the property that would be affected by an immediate eviction, and accordingly grant the tenant a certain amount of time to vacate the premises, failing which the Sheriff will be enlisted to evict the tenant.
The above is merely a brief outline of the process and each matter will run its own course depending on the circumstances.
The legal cost of the above process can be claimed from the tenant, that is, however, a further legal process that is not the subject of this article.
It is therefore very important that as a landlord, you are aware what your lease agreement states, that the tenant you place in your property is properly vetted and that you act in accordance with the lease agreement. Always ensure that you follow up with your tenant regarding payment and provide them with the correct notices to place them in breach when payment is not made. While income from a second income property is passive income, it must still be nurtured like any other business transaction. If the pitfalls of a non-paying tenant are catered for and guarded against, owning a second property to earn an income can be a profitable endeavor.
Using a stock standard lease agreement may save you time and money now, however, it can cost you a lot of time and money in the future. It would therefore always be my advice to approach your legal representative to assist you in drafting a tailor-made lease agreement that comprehensively covers you against unnecessary delays and legal costs.
I hope the above information has made the process a little easier in helping to determine whether you should invest in a second income earning property.
Written by Mishali Parbhoo
Director
[email protected] / 079 933 3442
