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Suburb Houses

PROPERTY LAW   |   EVICTIONS

Evictions and Recoveries of Arrears Rental

Your investment property is one which must see a low rental vacancy rate to remain profitable. When a tenant fails to keep up with rental payments, or refuses to leave the property, you may have to institute an eviction application promptly to minimise your loss.

How evictions work

 

South Africa’s past has given rise to the promulgation of the Prevention of Illegal Eviction (PIE) Act, which governs eviction law. The Act prescribes strict conditions under which an unlawful occupier of a residence may be evicted. Non-compliance with these conditions can amount to a criminal offence, and can delay or preclude successful eviction of the occupiers. It is therefore critical to follow the correct procedure in an eviction.

 

The lease must be canceled, followed by service notice of an application in terms of the Act for an order evicting unlawful occupiers. The occupiers are afforded an opportunity to defend the application, and often use this opportunity to delay the process, for instance by appearing in court without proper documentation or legal representation. Upon successful judgment, the unlawful occupiers must then either vacate the premises voluntarily or be removed by the sheriff and/or the police.

 

The expected resolution time of an eviction application depends on the facts of each case and the delays at the courts, but an estimated “best case” scenario is 3-6 months. “Worst case” scenarios can take 6-12 months. Like all legal proceedings, the eviction process takes time, and every month delayed is a month’s rent lost. It is therefore vital to start eviction proceedings without delay – and to do it right the first.

 

Can’t I just change the locks / take off the doors / switch off the water and lights?

 

We are often asked this question, and the answer is a resounding NO. Such actions constitute criminal offences in terms of the PIE Act, and entitle your tenant to obtain a spoliation order. A spoliation application is one which happens as a result of the landlord taking the law into their own hands, or committing an unlawful act which disturbs the tenant's use of the property. A spoliation order returns the situation back to what it was before the unlawful act (i.e. it reinstates the tenant's use of the property) regardless of whether the tenant was there unlawfully. If you take one of the unlawful actions above, it is very likely that the tenant will succeed with a spoliation order against you, rendering you not only civilly liable for legal costs but potentially criminally liable for contravention of the PIE Act.

​​If your tenants are causing damage to the property, it's vital to commence eviction proceedings as soon as possible. Gather what evidence you can, and institute a separate action for damages and arrears rental.

​​​The costs of an eviction application

 

The cost of an eviction depends on how far you need to go to get your tenant out. Sometimes, a stern letter from us is all it takes - but other times, the tenant has to be forcibly removed by the sheriff. The process is as follows:

Steps 1: Consultation with you, review of evidence, commencement on the file and Letter of demand to the tenant

Step 2: Drafting of the eviction application

Step 3: Hearing of the application in court

Step 4: Execution of the eviction order

 

An eviction can usually be expected to cost from R10,000 – R30,000, depending on the number of court appearances required and the strength of the evidence you provide. The more comprehensive your evidence, the less work is usually required.

What about the unpaid rent?

Coupled with the challenge of removing the tenant is the recovery of the arrears rental. Often landlords are too lenient and allow the tenant to accumulate far too much debt. It is important to institute a civil action for recovery of these arrears without delay for two reasons:

1. The longer you allow a debt to accumulate, the more difficult it become to collect it. The tenant may disappear, requiring tracing services to find them. Also, a person in debt is often someone who is not managing their finances correctly, and is slipping further into debt. There is a real risk that it becomes impossible to collect the debt from a person who has insufficient assets or income.

2. By law, most debts prescribe (become extinguished) if action is not instituted to recover them within 3 years of the debt becoming due.

 

 

For more information about evictions and rental collections, contact us.

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