Can you evict paying residential tenants?

By Danielle van Wyk

One of the most common reasons for wanting to evict a tenant is non-payment of rent. But there are many other situations that landlords may encounter. These can range from damaging property and breaching contract, to being reported as a continuous disturbance by neighbours.

While these reasons may have nothing to do with paying rent, it can be serious enough for the landlord to consider eviction. This week Justmoney explores whether a landlord is within his or her right to evict a paying residential tenant.

The short answer is yes, but only under certain circumstances, says Dexter Leite, Pam Golding Properties rental manager.

“These circumstances pertain to the tenant being in material breach of the lease agreement. For example, if the property can only be let as residential premises, but the tenant operates a ‘wine bar’ on the property, it is considered a breach of contract,” says Leite.

But what does the law say?

“The eviction of tenants is typically based on the grounds of unlawful occupation of which the most common offense is non-payment,” says Preston Sheldon, manager of legal and credit control for the Swartland municipality.

“But landlords seeking to evict tenants under any other circumstances are governed by the Prevention of Illegal Evictions and Unlawful Occupations Act (PIE) and the Rental Housing Act 50 of 1999,” he explains.

This protects both the landlord and the tenant in ensuring that the eviction and contract termination process does not infringe on any of their rights.

Another consideration is the protection that the contract offers both the landlord and tenants. The termination of the right to occupy immovable property for residential purposes is generally governed in terms of a lease agreement between a landlord and tenant.

A landlord who seeks to evict a tenant may only do so if the tenant is in unlawful occupation, says P. J. Veldhuizen, managing director of Gillan & Veldhuizen.

Process is key

Landlords need to know what a tenant’s rights and obligations are. Unlawful conduct by the landlord can jeopardize the success of the eviction. Landlords can even be jailed for taking the law into their own hands, says Sheldon.  

“In terms of the Consumer Protection Act 68 of 2008 (CPA), if the lease is deemed to be CPA compliant, the landlord formally needs to put the tenant to terms, as per the breach clause contained in the lease, to remedy the breach within 20 business days,” says Janine Ferreira, head of marketing and communication.

The onus is placed on the tenant to rectify the situation or address the grievance.

“Failing rectification of the breach by the tenant, the landlord may cancel the lease, further giving the tenant notice to vacate on a specified date (this date could coincide with the cancellation date,” says Ferreira.

If the tenant does not vacate on said date, the tenant becomes an “illegal occupier” and the eviction process can be instructed, via an attorney through our courts – either through the Magistrate’s Court or the Supreme Court. This means the sheriff of the court will forcibly remove the tenant.

“It is advisable that the landlord employs the services of a suitably qualified attorney to deal with this entire process, as a procedural misstep can considerably delay matters and lead to unnecessary costs or damages, thereby delaying the eviction,” Ferreira adds.

If the lease is deemed to be non-CPA compliant, the time-frames essentially differ, but the overall process is similar.

What are the costs involved?

Since an occupant can decide to vacate a property at any stage during the eviction process, the cost can significantly vary according to the specific circumstances, but it can become an expensive exercise.

“An eviction order can cost anything between R20,000 – R60,000 in legal fees depending on whether the tenant opposes the eviction. There are tenants who move out immediately where they are unable to rectify a breach in the lease agreement. Then there are tenants who purposefully play the system and squat in a property until the sheriff knocks on the door,” Ferreira explains.

Due to the above, it is difficult to quantify the cost of lawful evictions. But the nature of eviction procedures allows for remote consultations which can prevent high costs, time-consuming hassles, and delays, says Sheldon.

It is usually preferable to exhaust all possible avenues in coming to a negotiated settlement with a tenant before a landlord decides to evict.

“An unopposed eviction could take two to three months whereas an opposed eviction could take much longer,” says Leite.

If you’re interested in becoming a landlord and owning property of your own, but need the additional financial assistance consider taking out a home loan instead.

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