While it can be a lengthy process to evict tenants who don’t pay their rent, there are procedures in place to make sure that both the tenant’s and the landlord’s rights are protected. In simple terms, if the tenant doesn’t pay rent, they are in breach of contract, and you as the landlord are within your rights to take action. Here are the facts:

According to the law

Tenants are protected by two pieces of legislation, namely: the Prevention of Illegal Eviction from Unlawful Occupation of Land Act, No. 19 of 1998 (PIE Act), and the Rental Housing Act of 1999 (RHAct) as amended. The first sets out the process for evicting tenants who don’t play ball, and the second makes it a criminal offence for a landlord to simply cut the supply of electricity or water, change the locks, confiscate tenants’ belongings, or stop a tenant from having access to the property.

In other words, both the tenant and the landlord must play fair.

When is a tenant not playing fair?

There are three different categories of defaulting tenants. Tenants don’t play fair when -

• They consistently pay late or skip the odd month completely,
• They don’t pay their rent at all; and
• They only slip up on the odd occasion.

Managing the odd late rental payment

A late payment might happen by accident. Sometimes the way public holidays fall affects when the funds reflect in your account, or as has happened, there is a bank system problem that also impacts the rent arriving in your account. Neither of these might be the tenant’s fault, but to make sure this doesn’t have a knock-on effect on your bond repayments, we suggest you do three things:

• Never let a late or missed payment go unnoticed, as this can set a false expectation that this kind of behaviour is acceptable. Chat with your tenant immediately to find out what has caused the delay. If payment is not made after bringing it to the tenant’s attention, draft a formal letter to notify them that they are in breach of contract (more on that below).
• Allow enough room between the tenant’s rental payment date and the date on which your bond repayment is deducted so that you can make a plan – if you have to.
• Make sure that the full bond repayment amount is always available in an accessible savings account – just in case a tenant doesn’t pay in time.

Steps for stopping late rental payments

While it might be forgivable for the odd late payment if it’s a bank or financial system-related problem, you cannot be so lenient if your tenant gets into the habit of paying their rent late. Here are the steps to follow, which can, ultimately, lead to a legal eviction:

1. Draft a Formal Letter

Because the monthly payment date forms part of your rental agreement – which must also comply with the Consumer Protection Act – when a tenant doesn’t pay on time, they are technically in breach of contract. Legally, this means that you should send the tenant a formal letter explaining that they have 20 business days to make the payment, and if they don’t pay their rent in that time, their lease will be cancelled.

What to include in your formal letter of demand:

• The date
• The names of the parties (usually yourself and the tenant)
• The address of the property
• Specify exactly what is the breach, for example, if the rent hasn’t been paid, how much is due, and what else is payable, for example, services and interest that has accrued
• By when – usually within 20 business days – to make the payment
• Mention the specific clause number(s) in the lease for each breach
• Note: to make it a legally binding notice of breach of contract, it must be signed by the landlord or agent.

2. Follow up in 20 days

If the tenant fails to act on the formal letter (i.e. does not pay what is due by the time your 20-day deadline has expired), you can legally terminate the lease and ask them to leave. Hopefully, the tenant complies and moves out.

Steps for evicting tenants for breach of contract

If the tenant does not vacate the property, then you can take out a court order to evict them for breach of contract. This process can take up to six months, during which your tenant can stay in your property and will probably still not pay rent.

Step 1: Decide whether to interdict or cancel

If tenants fail to rectify the breach – pay what is due – within the stipulated 20 days, as the landlord, you have two options:

• proceed with a summons (interdict the tenant) or
• cancel the agreement immediately.

If, after you have interdicted the tenant, they have still not made any effort to pay the outstanding rent, you are within your rights to cancel the lease agreement.

Step 2: The eviction process

Once the rental agreement has been cancelled, the tenant is no longer protected by the Prevention of Illegal Eviction Act because they are now illegally occupying your property. This means that you can legally evict your tenant. Once the lease is cancelled, which means there is no longer an agreement to enforce, you can start both the interdict and the eviction processes at the same time.

Word to the wise: for interdicts and eviction processes, it’s best to use the services of an appropriately experienced attorney.

Step 3: The eviction notice

The Magistrate’s or the High Court hear eviction applications and if they are unopposed, it takes between eight and ten weeks from the application until the eviction is granted. In South Africa, the tenant is usually given at least another 14 days to find new accommodation before the eviction order is executed – carried out.

Key things for landlords to remember:

• Your bondholder will penalise you if you default or pay late, so there is no reason why you should not remind tenants of their legal obligations to you.
• A rental agreement is a legally binding business contract. If you are tolerant and play easy-go-lucky, your tenant might think that there will be no consequences if they pay late again.
• The eviction process can be lengthy. The longer you take to act on a late or missed payment, the longer it will be before you can legally evict a tenant who continues to miss payments.
• Always play by the rules. While you might think you can get a non-paying tenant out quicker if you change the locks or defer to other intimidation tactics, the truth is that this will most likely only provide the tenant with ammunition to use against you in the court proceedings. This will only drag things out further and cause more unnecessary complications and delays.

Be professional: use the professionals

It’s often very tempting to go it alone in the mistaken belief that handling the business of renting out the property yourself, will save you money. Also, when we’ve found the perfect tenant, it’s impossible to think that something might go wrong, and then it does. Professional rental agents have access to tools and resources for screening prospective tenants. They are also equipped to deal with non-paying tenants on your behalf; which also means that the relationship with your tenant does not have to become personal.

Chasing money and dealing with difficult tenants can be extremely stressful. This is why using a professional RE/MAX rental agent makes so much sense. Don’t let the possibility of a defaulting tenant stop you from making your investment property work for you - enlist the help of your local RE/MAX Office for a stress-free rental process.

Have more unanswered questions? Here are some related questions – and answers – that might help…

Can you evict a tenant for not paying rent?

If you have a watertight rental agreement that sets out the terms and conditions for paying rent, and the tenant stops paying rent, they will be in breach of that contract. That means that, yes, you can evict the tenant for not paying rent.

Can a landlord evict you immediately in South Africa?

In South Africa, a landlord cannot immediately evict you without following the due processes. If the landlord has formally cancelled your lease agreement and asked you to move out, and you do not, they can go to court to get an eviction order. This process can take six to eight months. Also, if the eviction order is granted, you will likely get another 14 days to find new accommodation.

How do I get rid of a tenant without going to court?

If you send the tenant a formal letter, and they do not pay what is due by your deadline, you can cancel the lease and ask them to move out. If the tenant moves out, you both avoid going to court and additional legal costs.

 

If you have any more unanswered questions, contact your nearest RE/MAX Office.