When and how you can evict a tenant

A tenancy agreement is, before anything else, a contract, says attorney Simon Dippenaar.

The landlord and tenant are engaged in a contractual, business relationship, regardless of whatever else they may be in other areas of life.

To protect the asset the property represents, the landlord at some point may have to take action that is unpopular with the tenant.

Cancellation vs. eviction

It's important to understand the distinction between cancelling a lease and evicting a tenant, says Dippenaar. They are not one and the same thing.

A lease cancellation is the conclusion of a civil contract between two individuals, for a valid reason.

Eviction is a legal process that must be conducted via the courts and requires an attorney. A landlord cannot evict a tenant without going through due process of law.

The eviction process

Assuming there is a written lease agreement in place, a breach of the conditions of the lease might lead a landlord to want to cancel the lease.The breach might concern living habits, such as excessive noise, keeping pets without the requisite permission, or failing to maintain the property in a reasonable state. The most common cause of lease cancellation is rent arrears.

Of all these transgressions, failure to pay rent has the most severe economic consequences for the landlord, but may attract the most leniency, because the tenant may have lost their job or suffered some other financial misfortune beyond their control.

Because the law knows that a rented property is someone's home, it provides protection to tenants. Several pieces of legislation ensure that an unscrupulous landlord cannot put a tenant out on the street without warning.

The law is particularly sympathetic to vulnerable people, such as children, the elderly, disabled people, or woman-headed households.

Cancelling a lease

The landlord must give the tenant notice of the breach and a chance to rectify it. In the case of rent arrears an opportunity must be given to make good the rent due.

This is done by way of a warning in writing, giving the tenant a specified amount of time in which to remedy the breach. The time frame will be determined by the terms of the lease, or if not specified it will be 20 working days, in accordance with the law.

If there is no written lease, the landlord must give a full calendar month's notice. If the tenant pays up (and does not repeat this breach month after month), the matter is finished and harmony is restored.

However, if the breach is not remedied, the next step is a letter of cancellation served on the tenant by the landlord. In some cases the lease may have expired but the tenant still occupies the premises with the landlord's consent on a month-to-month basis.

This may happen if a tenant is looking to move house or waiting on a job offer that includes relocation. In this case the landlord must give the tenant one calendar month's written notice of cancellation.

Eviction 

With luck, the tenant vacates the property at the end of the notice period. If so, the landlord is free to find another tenant who can pay the rent.

However, should the tenant disregard the lease cancellation, the landlord may have no choice but to start the eviction process.

The landlord must apply to the court to have an eviction notice served by the sheriff on the tenant – who is now considered an unlawful occupier rather than a tenant.

A court date is set and a deadline given for filing an opposing affidavit if the unlawful occupier wants to oppose the eviction.

If the court is satisfied that the case for eviction is sound, the tenant or unlawful occupier will be given time to vacate the property.

Only if, despite this process, they fail to vacate the property within the specified period, will the sheriff will be authorised to remove them and their belongings from the property. The cost of this will be borne by the tenant.

The landlord may not change the locks, physically remove personal property, or behave in a threatening way toward the tenant, however recalcitrant the tenant may be.

Only the sheriff may take any physical action against the tenant. A landlord who takes matters into their own hands may find themselves facing serious consequences.

* Simon Dippenaar is an attorney at Simon Dippenaar & Associates in Cape Town and Johannesburg.

Original article published on FIN24.

Need to make an eviction? Don't get PIE all over your face.

The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) protects the rights of occupiers and landowners alike. It sets out procedures on how to properly evict unlawful occupiers from residential properties, while prohibiting illegal evictions. Learn more about the requirements of PIE and how to keep on the right side of the law here.

Eviction – when can a landlord cancel a lease?

As we are always at pains to stress, eviction law is there for the protection of all parties' interests. Just as no one wants to see a family unnecessarily or unfairly made homeless, landlords also have the right to receive a fair rent, on schedule, for the use of their property, and to expect their property to be properly maintained and well looked after.

In this post we will look at a landlord's right to cancel a lease and to claim damages. In the next post we will look at the tenant's right of remission of rent, that is, the right to set off rent payable against compensation due by the landlord.

Lease cancellation – breach of lease

If a tenant fails to pay rent, and there is reason to suspect that the tenant may not pay future rent, the landlord may cancel the lease. However, it is not as simple as that. Whether or not the court grants the cancellation depends on the wording of the lease. For cancellation to be justified, the failure to pay must represent a major breach of the lease. And for that to be upheld, the lease must contain a forfeiture clause, i.e., an indication that prompt payment is of major importance. The wording might include "time is of the essence of the contract".

If the lease contains a forfeiture clause, the landlord is permitted to cancel the lease on the first occasion when the tenant fails to pay rent. However, if the landlord regularly accepts late payment, they cannot then use this as a reason for cancellation, because they have given their tacit approval in the past. In this case the landlord must give the tenant prior notification if they intend to cancel the lease.

Don’t forget the CPA

Bear in mind that the Consumer Protection Act (CPA) requires “residential landlords” to give tenants 20 business days’ notice of the need to vacate a property. According to section 14 of the CPA, If your tenant is in material breach of the lease, you can’t cancel the lease without giving 20 business days’ notice, and you can’t cancel the lease if the breach is rectified within those 20 days. The Rental Housing Act does not contain such a prescriptive clause, but the CPA takes precedence over other legislation. See Consumer Protection Act & Rental Agreements Explained for more information.

Month-to-month or open-ended leases

The landlord must give the tenant "reasonable" notice of termination of the lease. A calendar month’s notice would satisfy the 20 business days required by the CPA and would be considered reasonable.

Public housing

Different rules apply when the lease is for public housing. Recent case law established that to terminate a public housing lease agreement on just one month’s notice would be oppressive and unconstitutional. Therefore, a tenant of public housing should be afforded the chance to rectify a breach prior to lease cancellation.

Implied leases

If a lease expires and the tenant continues to pay rent, and the landlord continues to accept it, they have effectively created a new, implied lease. There are also certain fixed-term leases that become implied month-to-month leases after expiry, in terms of the CPA. By law, the payment and acceptance of rent after the official end of the lease implies that a new lease has been agreed.

Damages

Landlords are allowed by law to claim damages in lieu of unpaid rent, in addition to cancelling the lease. The landlord may claim the rent for any period prior to cancellation and damages for the period thereafter, i.e. if the landlord is deprived of rental income due to an inability to immediately find an alternative tenant . The landlord may accept payment of rent prior to cancellation, and can still lawfully proceed with the cancellation. If the landlord accepts rent after cancellation for any period the tenant remains in the property, this does not mean that the landlord has revoked the cancellation. This is called "holding over". This might happen if, for example, a landlord gives a tenant a grace period to find alternative accommodation, but does not wish to retain the tenant permanently.

The law regarding damages is technically complex and it is impossible to cover all the variations in this short article. If you have questions about damages relating to an existing lease give us a call and we will investigate your specific circumstances.

Municipal charges – surety

Property owners should note that they cannot sell a property without a clearance certificate from the local authority, stating that all municipal service fees, surcharges on fees, property rates and other municipal taxes, levies and duties have been paid – for two years preceding the date of application of the certificate. Any outstanding charges take precedence over a bond registered against the property.

What this means in practice is that landlords act as sureties for tenants, because property owners are held liable for the municipal accounts of the tenants. Furthermore, local authorities don't go out of their way to collect debts from account holders because, ultimately, owners can be compelled to settle the accounts when there is a sale of the property at a later date. Thus the terms of the lease are critical; they should ensure the monitoring of the tenant’s payment of municipal charges, and allow for forfeiture clauses and damages in case of default. There is an argument for asking for a larger deposit, i.e. more than one month's rent, in light of the risks involved, and this should not be considered unfair practice in terms of the Rental Housing Act.

Take professional advice

Eviction law must be navigated with care and professional expertise. If the proper process is not followed, you can find yourself in breach of the Rental Housing Act, PIE or the CPA. Simon Dippenaar and Associates are experts in property law and we act for both landlords and tenants, so we understand the legislation from both sides. We will help you manage your rental property and tenant relations efficiently and in full compliance with all relevant regulations.

Contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za.



Expropriation of property without compensation

Expropriation - It seems the African National Congress (ANC) is determined to press ahead with the expropriation of property without compensation. This raises a number of constitutional questions. These questions and offered answers have appeared in the press.

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The Constitution

Some have argued the constitution will have to be amended while others have argued land can be expropriated without compensation without amending the constitution. Along these lines, then, a further question which has arisen is, if it is amended, what percentage of members of the National Assembly will be required to approve the amendment?

In terms of s74 (1)(a) of the constitution, 75 per cent is required, but, in terms of other provisions, two-thirds is required. So, the question arises, does the amendment fall within the purview of s74(1)(a) or does the amendment fall to other provisions of the constitution? Amending s1 of the constitution falls within the preview of s74(1)(a) which requires 75 per cent of the vote.

I am of no doubt that to expropriate property without compensation so as not to breach the constitution will require 75 per cent of the vote because s1 will have to be amended to excise the words “rule of law” and “human rights” from the constitution. The Rule of Law and Human Rights requirements are contained in s1 of the constitution.

The Rule of Law

The Rule of Law is a well-known concept but seldom specifically incorporated into legislation. It is one of those fundamental concepts which form the foundation of constitutional principles but is not itself specifically incorporated into the constitutional document. This is like coming across a breathtaking scene and gasping “What a beautiful sight”, but, try as you may, the words cannot be found to explain what you mean by a “beautiful sight”. The detailed description of the scene does not succeed in conveying the “beautiful sight”. The verbal description does not come close to conveying the abstract beauty. The readers of your words will never, via those words, experience the actual “beautiful sight”. In similar manner, the words contained in legislation can never quite express the full meaning of the Rule of Law. In most cases legislation although informed by the concept, the phrase “rule of law” is omitted as part of the legislative text.

The South African Constitution is a rare exception to the rule.

It explicitly incorporates the Rule of Law into the constitution as the fundamental principle of the constitution. That this was done is correct. A constitutional democracy can only be a constitutional democracy if it functions in terms of the Rule of Law. The requirement for the Rule of Law is incorporated into section 1 of the constitution. There are some who hold the South African Constitution as one of the leading constitutions in the world. Incorporation and functioning in terms of the Rule of Law would validate that view.

Section 1 thus contains the founding provisions of the nature of the Republic of South Africa. The relevant portion reads:

“The Republic of South Africa is one, sovereign, democratic state founded on the following values

(a) … the advancement of human rights and freedoms…

(c) Supremacy of the constitution and the rule of law.”

Section 2 is also pertinent:

“This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled”.

In terms of s2 the Rule of Law cannot be breached and must be upheld. It cannot be ignored. If breached or ignored the constitution is violated.

I have demonstrated elsewhere that expropriation of property without compensation is a violation of the Rule of Law. Thus any “law” which is passed allowing expropriation without compensation would be in breach of s1 (a) and (c) of the constitution and this “law” would be invalid in terms of s2 of the constitution. The state acting in terms of that “law” would breach s2 of the constitution.

This brings us to human rights contained in s1(a) of the Constitution.

The Lord Chief Justice of the United Kingdom, Tom Bingham, spent the final period of his productive life finishing his book, The Rule of Law. He explains the Rule of Law in terms of eight imperatives, one of which was to protect Fundamental Rights. He points out the Rule of Law prohibits the arbitrary confiscation of property without compensation. He continues; the treatment of white farmers in Zimbabwe would be the most obvious example of this.

Thus, the only way to pass the law allowing expropriation of property without compensation without violating the constitution would be to excise “human rights” and “the rule of law” contained in s1 from the constitution. To do this requires a 75 percent vote.

Of course, excising “rule of law” from the constitution does not mean the Rule of Law is not violated. It simply means the letter of the South African Constitution is not breached. The Rule of Law itself is still violated. In fact, in all probability, so will the amended constitution be violated even with the words “rule of law” excised. As indicated above, the Rule of Law is seldom explicitly included in legislative documents. But the spirit of the Rule of Law is infused deeply in constitutional theory which informs constitutionalism as a whole.

One cannot thus say America is a country which operates outside of the Rule of Law simply because the words “Rule of Law” does not appear in the American Constitution. The spirit of the Rule of Law will remain infused in the South African Constitution. While one may be unable to find the words to explain why a scene is beautiful, without those words the scene remains beautiful.

Excising the words “rule of law” and “human rights” requires a 75 per cent vote to formally remove these words. As long as the words remain in s1 of the constitution, it will be clear to all that expropriation without compensation violates the South African Constitution and the government is failing in its obligation to uphold the Rule of Law. Removing them, allowing some to claim they have acted in terms of the constitution, is as meaningless as the Nazi generals claiming at Nuremberg they were merely following their orders; they were merely acting in terms of the “law” of their land. The answer given at Nuremberg to that argument was clear: In obeying the “laws” of their land, they were committing crimes against humanity.

The Rule of Law does not obtain legitimacy from the South African Constitution. The South African Constitution obtains its legitimacy by upholding the Rule of Law. Without the Rule of Law, the South African state becomes but yet another failed state and its constitution yet another failed constitutional experiment.

Robert W Vivian is Professor of Finance & Insurance, School of Economic and Business Sciences, University of the Witwatersrand