Do's and don'ts of evicting a tenant

As a landlord, one of the worst situations to find oneself in is dealing with a problematic tenant who does not comply with the terms in the signed lease agreement.

There are many reasons for wanting to get rid of tenants, such as causing major damage to the property, staying on the property after the lease has expired and continuously breaking rules of the contract. But the most common reason for wanting to evict a tenant is due to late or no payment of rent money.

Thereare a number of laws within South Africa that govern rental agreements, including the Rental Housing Act (Act 50 of 1999), Law of Contract, common law, Consumer Protection Act (CPA) and the Constitution.

However, evicting such tenants is not a simple process. There are certain do's and don'ts dictated by law that all landlords should be aware of in following the correct procedure and having their tenants removed from the property for good.

"When a tenant does not pay rent on time, although they are in breach of their contract and a landlord has the right to terminate the contract, this does not necessarily mean that the tenant will vacate the property or that the landlord can just put pressure on them to leave," says Jan Myburgh, General Manager of Harcourts Real Estate South Africa.

The most important thing for landlords to remember is that they cannot evict a tenant themselves. As much as most landlords would love to personally be involved in evicting their troublesome tenant, this is not the correct route.

When a tenant is in breach of the contract, landlords should first ensure that the tenant is served notice to rectify the breach as stipulated in the lease agreement. If, or when nothing is done to rectify the shortcoming, a landlord can terminate the lease agreement and start the legal process to evict the tenant if they are showing no signs of leaving on their own.

The eviction can only be done by a court order, which may take up to 3 months. Legal fees will have to be paid to the attorney upfront, but these fees should later be reimbursed to the landlord by the tenant, as well as the outstanding rent money.

Although a landlord may feel that they have the right to keep a tenant from entering their property by changing the locks to the property, this is an illegal eviction and the landlord will find themselves in hot water with the law if they try this route. As in

normal circumstances, should any locks on the property be changed, landlords are obliged to supply tenants with the new set of keys.

"As angry as landlords may be towards their tenant and seek to reclaim unpaid rent money, they are not allowed to - under any circumstances - enter the property without notifying the tenant, or take the tenant's possessions within the property as a means of

compensation for rent money that is in arrears," says Myburgh.

Landlords in the past have had criminal charges laid against them by tenants. A court order needs to first be obtained before actions relating to the tenant's possessions can occur.

Rental Risk cover could be utilised in order to protect the owner's investment. Having this form of insurance will give a landlord peace of mind knowing that the risk of cost due to damage of property can be minimised as well as rental payments and legal costs covered.

Myburgh says Harcourts Real Estate property management divisions offers such products as part of their management services. The legal route can be a tedious and costly affair, so landlords should rather do everything in their power to choose the right tenant in the first place. This includes credit checks, getting references and being assured that the prospective tenant is employed and well able to pay.