Laws within South Africa that govern rental agreements:
- Rental Housing Act (Act 50 of 1999),
- Law of Contract,
- Common Law,
- Consumer Protection Act (CPA)
- Prevention of Illegal Eviction from and Unlawful Occupation of Land Act No. 19 of 1998 (the PIE Act). <Protects only residential tenants (i.e. it doesn’t apply to commercial leases), including illegal squatters and defaulting tenants.>
- The Constitution.
NB Landlord cannot evict tenants themselves!! Do not change the locks to the property!! Do not enter the premises without notifying the tenant(s)!! Do not remove any of the tenant(s) asset(s)!!
Correct procedure to follow:
When the rental has not not paid,
- Phone the tenant to find out why. If it has been paid, request proof of payment. Do not demand payment! It is seen as harassment!!.
- Send an email and/or send a registered letter and or deliver by hand. a letter confirming the telephone conversation eg.
As per our telephone conversation on ……………… at ………………. it was discussed that you would (send proof of payment/pay your rental) by close of business ………………….
- Send a registered letter / notice to the tenant with the following information:
- The date
- The names of the parties
- The address of the property
- The nature of breach, and if non-payment, the amount overdue (include rent and services if applicable)
- Reference to the breach clause in the lease
- Must be signed by the landlord or the agent
And should be delivered by registered mail. An eviction case can be rejected by a local judge because the notice letter was not sent by registered mail file the Post Office slip as proof that notice was properly served. The notice is valid whether the tenant acknowledges it or not.
If nothing is done then the landlord has the right to terminate the lease agreement and start the legal process to evict the tenant if the tenant shows no signs of leaving. Notice should be served after the due date above, stipulating that the agreement is no longer in place that that the tenant should vacate the premises immediately. If the landlord finds that the tenant ignores the summons, they can within ten days of it being delivered apply for a default judgement against the tenant, followed by an Ejectment Order to evict the tenant.
Eviction can only be done by court order. This can take up to 3 months. Legal fees will have to paid, upfront to an attorney, however this can be recouped from the tenant along with any outstanding monies. A court order needs to be obtained BEFORE you can take any of the tenant(s) assets.
Legal route is a tedious and costly affair. Do your research on the tenant(s) beforehand.
- Credit checks (TransUnion)
- References (previous landlords)
- Being assured that the prospective tenant is employed (employment contract)
- Able to pay (bank statements)
- Suretyship (parents, friends)