EVICTIONS
Specialist Expertise
Our Litigation Department includes evictions as one of its areas of specialisation. We are highly reviewed for our consistent success rate and regular feedback to clients. ​In over 60% of cases, we get the tenant to move out without going to court.
1. THE LEGAL PROCESS
How does the eviction process work?
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Evicting a tenant in South Africa is a legal process governed by strict laws designed to balance the rights of property owners with the constitutional right to housing. A landlord cannot simply remove a tenant for non-payment or breach of lease. An eviction must follow a formal court procedure, or it will be unlawful.
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This means you cannot evict a tenant without a court order - whether they are paying rent or not.
Grounds for eviction
Before commencing with your eviction application, your case must have grounds for success. A landlord may only apply for eviction in certain circumstances, for example if:
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The tenant has failed to pay rent.
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The lease has expired and the tenant refuses to leave.
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The tenant has breached the lease agreement.
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The property is occupied without consent (unlawful occupiers).
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The tenant has caused serious damage to the property.
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In other words, your eviction application will fail if the tenant has not breached the agreement in any way.
Before commencing with an application in court, a landlord must first cancel the lease in writing. The wording of one cancellation letter differs from the next depending on the terms of your lease agreement. This means that, prior to sending the letter, the terms of the lease agreement should be clearly understood. Failing to cancel in terms with the provision of the lease has sunk many eviction applications, forcing the landlord to start over and incur duplicated legal costs.
Court Applications
Next, the landlord must make several applications to court. Most courts nowadays interpret the PIE Act provisions such that more than one application is necessary. The timing of these applications must be carefully managed. There is a heavy burden on the landlord to prove that the balance of probabilities favour evicting the tenant!
Illegal Evictions
An eviction is illegal if:
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It happens without a court order.
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Utilities are cut off to force a tenant out.
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Locks are changed without permission.
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Property is removed without legal authority.
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New tenants are placed into the property to harass the existing tenants.
Some landlords try these tactics to get tenants out, but it is extremely risky and can lead to a criminal conviction as well as imprisonment of up to two years. Don't take the risk - all it takes is one tenant who knows their rights to press criminal charges against you.
The Law is Against You
The law favours tenants, and judges are often lenient on tenants while setting high barriers to landlords for eviction applications to succeed. The eviction process takes at least three months - so you're likely to lose at least another three months' rent. Landlords who try to risk DIY evictions may face having to start the process all over again due to one tiny technical error.
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It's critical to appoint experienced eviction lawyers to start the eviction process as soon as possible.
2. HOW MUCH DO I LOSE IN AN EVICTION?
Every month a landlord waits to take action is another month's rent lost. But have you ever calculated just how much you could lose in unpaid rent, and the risks of mounting liabilities?
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If you're a property investor, you know your return margins can be slim. After deducting bond payments, if you have anything left, there are still levies to be paid, managing agents' fees, maintenance and repairs to damages. If your bad tenant hasn't paid utilities, you'll have to cover those too or risk legal action from the municipality.
The reality is, you cannot afford to have a bad tenant not pay rent, especially if the property is bonded. If you wait just 3 months to start an eviction, you lose 3 months' worth of rent. By that time, your finances are likely under strain to continue paying the levies, bond and rates/utilities, or you have stopped paying them and you face legal action from the banks, HOA and municipality. You risk losing your investment property.
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In many cases, once we communicate with the tenant and make it clear that nothing is stopping them from being evicted - and that you will hold them liable for legal fees - they move out within the month. Once attorneys are on the case, many tenants recognise that (a) they are not going to manage to stay in the property, and (b) they are going to be chased forever for the lost revenue.
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Tenant not paying rent? Speak to us to start the eviction process and cut your losses now.
Our Litigation Department team celebrating our recent win in an HOA property rights dispute
3. HOW LONG CAN A TENANT STAY?
How long can a tenant stay without paying rent?
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Only as long as you let them. There’s a common misconception that tenants can simply stop paying rent, and that you have to allow them to stay for a certain time. But non-payment Is an immediate and material breach of the lease agreement.
The moment a tenant fails to pay rent on the due date, they are in breach of the lease agreement. That breach gives you the right to start the eviction process.
By law you are required to give the tenant a Notice of Termination of the Lease. That letter has to give them 20 days to vacate the property before you can start an eviction application. In other words, you cannot just kick the tenant out the moment they are a day late on rent.
If your lease was badly drafted (we have seen this happen before), you may additionally be required to give the tenant a Notice of Breach letter first, before you can move on to the Termination Letter. That gives them an additional 7 days. Make sure your lease agreement doesn't contain this fatal flaw, and contact us for advice if you're not sure.
Start the eviction application
Only if the tenant fails to vacate the property by the end of the Termination Period can you then proceed to the eviction application. Each of these steps take time, but must be done according to the law, otherwise you may face criminal liability. But here’s the critical point: there are certain minimum time periods prescribed by the law, but it's up to you to minimise your own delays.
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So how do I minimise my own delays?
The best thing to do is to remind yourself that your investment property is simply that - an investment. You took a lot of financial risk and sacrificed to be able to afford the investment property. It needs to create a return on investment for you, and if a tenant is not paying rent, your property is not only not producing returns - it is costing you money. Failing to evict your bad tenant as soon as possible means you could lose over R160,000 in lost rent and legal fees, in just a few months.
That's why you need to be completely ruthless with your bad tenant. If you do nothing, the tenant can remain in the property indefinitely. The difference between a tenant staying for an extra few weeks, vs a few extra months, can mean losing R10,000 vs losing over R100,000. If you’re dealing with a non-paying tenant, the focus shouldn’t be on how long they can stay — but on how quickly you can lawfully remove them.
Stuck in a legal dispute with a tenant? Book a consultation with our Attorneys today.
4. CRIMINAL OFFENCES
Disturbing a tenant's use of the property is a criminal offence under the PIE Act.
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Interfering with a tenant's right to a property is a criminal offence with jail time of up to two years. All it takes is one tenant with cellphone in hand, filming you committing a crime - and you'll be facing jail time. Plus, a tenant can obtain a Spoliation Order against you, making you liable for over R100,000 legal costs. ​​The only correct way to evict a tenant is with a court order.
Some landlords are tempted to take the law into their own hands. But it is actually a criminal offence to interfere with a tenant's use of a leased property - whether they have paid their rent or not.
Interference can take many forms, such as:
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entering the property without permission,
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changing the locks,
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taking the doors off,
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deciding you need to conduct "maintenance or repairs" on the property requiring the tenant to vacate,
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shutting off utilities,
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attempting to remove a tenant’s possessions, and
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one of the most famous: sending in a new group of "tenants" to harass and intimidate the tenant.
ALL of the above actions constitute criminal offences in terms of the PIE Act, and offenders can face both a fine and jail time of up to two years.
And yes: the authorities have seen all these tricks before. The Rental Housing Tribunal and Courts regularly punish landlords who take the law into their own hands. The law is clear: evict your tenants using the correct legal process, or face criminal charges.
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Spoliation Applications
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Landlords who attempt to evict a tenant unlawfully often also face a Spoliation Application by the tenant. A spoliation application is a court application a tenant may bring to be placed back in the property - and the court doesn't care whether they have paid rent or not. A landlord in this position will very likely lose the application, making them liable for the tenant's legal costs - and they'll still have to deal with the problem of getting the tenant out.
5. COSTS OF THE EVICTION PROCESS
​​​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:
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Consultation with you, review of evidence, commencement on the file and Letter of demand to the tenant
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​Drafting of the eviction application
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​Hearing of the application in court
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​Execution of the eviction order
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Realistically, an eviction can usually be expected to cost from R20,000 upwards, 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.
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​What about the unpaid rent?
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It is often difficult and uneconomical to try collect unpaid rent from a broke tenant. However, we assist our eviction clients with rent collection at a reduced price. If you appoint us to handle your eviction, we can assist with the rent collection at a reduced rate.
Tenant not paying rent? Book a consultation with us to get started today.
Magdaleen, our resident Conveyancer and eviction specialist.
MAYBERY INC.
PROPERTY LAW SERVICES
Conveyancing | Levy Collections | Litigation | Evictions | Property Management