As soon as a tenant stops making rental or utility payments, a landlord needs to go into immediate damage control mode. Often, once the tenant starts defaulting, it is a sign that he or she cannot afford the rental and the landlord needs to act quickly to avoid and escalating pattern of default and consequential loss. This article describes a number of ways in which a landlord can limit the damages suffered during an unlawful occupation of this kind.
Immediately send out a letter of demand (in writing and delivered to the property and any other domicilium address nominated in the lease) demanding payment of all arrears and giving the tenant a clear warning that if the tenant fails to effect payment as demanded, the lease will be cancelled and the tenant would have to vacate the property. Ensure that in the event that the lease agreement is subject to the Consumer Protection Act 68 of 2008, the tenant is provided 20 business days in which to effect payment before cancelling the lease agreement, and that any other breach period that might apply (for example, in terms of the
lease, or the Rental Housing Act 50 of 1999) is complied with;
In the event that the tenant does not effect payment in full as demanded, deliver a cancellation letter to the property and any other domicilium address nominated in the lease (if necessary you can just slide it under the door in order to avoid animosity between yourself and the tenant), and in that letter state clearly that the lease has been cancelled due to the tenant’s failure to remedy the breach, and demand that the tenant vacates the property immediately;
Immediately upon cancellation, hand the matter over to your attorney. Make sure that the attorney is provided with all relevant documents and appraised of all relevant information, especially the following: –
- Any and all lease agreements and addendums to the lease agreements and letters of demands or cancellation letters (not merely the latest lease agreement or letter);
- Details of any disputes that have arisen between yourself as the landlord and the tenant, as these may “crop up” again in court and it is prudent to advise your attorney upfront about these, so that (if necessary) they can be dealt with or pre-empted in the eviction application;
- Details regarding whether the home is woman-headed or whether children, elderly or disabled persons reside on the property;
- Whether the tenant is employed or has any possible means of obtaining alternative accommodation; and
- Any facts which would be relevant to the Court when deciding whether it is just and equitable to evict the tenant. For instance, the prejudice suffered by yourself as a result of the continued unlawful occupation of the occupant is a relevant factor.
Once an attorney is instructed, stop any and all communication, including the sending of rental invoices, with the occupant. Ultimately, any communication could jeopardise an eviction and any animosity between the landlord and the occupant may only fuel an occupant’s desire to make your life harder by (for instance) opposing the application or damaging the property;
Keep an eye on the property. Some occupants may vacate the property without advising the landlord or the attorney thereof. If the occupant vacates the property while the eviction is pending, the attorney would be able to merely stop all eviction proceedings, saving the landlord unnecessary expenses. You also want to ensure that the occupant has not abandoned the property without securing it, leaving it vulnerable to theft/vandalism or further unlawful occupation by other parties;
To avoid animosity and any perception of unlawful interference with the tenant’s occupation of the property, do not approach the tenant or even enter the property but rather drive by the property and peer in through the fence, in order to see whether there are lights on, check whether the municipal meters on the pavement are turning, or enquire from the neighbours whether they have seen the occupant in the property;
Once an occupant has vacated the property or been forcibly removed from the property, secure the property as soon as possible. Make sure that all locks are changed on the property or a new tenant takes occupation immediately. This would prevent the occupant (or other would-be unlawful occupiers) from re-invading the property or vandalising/damaging it;
Do not attempt an eviction or any form of interference with the tenant’s occupation of the property without a court order. This includes removing doors, terminating remote/biometric access, moving other tenants into the property with the defaulting tenant, and cutting of utility (electricity or water) supply. Any unlawful attempt at an eviction or interference with the tenant’s occupation may result in an urgent spoliation order being granted against a landlord. Ultimately, once granted, the landlord will become liable for the legal costs incurred by the tenant for bringing the urgent application and such attempts to take the law into your own hands is a factor which the court may take into account in deciding how long the tenant is provided in which to vacate the property when the landlord approaches the court for an eviction order. Furthermore, once a spoliation order is granted against a landlord, the “winning” of this “battle” while the eviction is raging, will only embolden the tenant to stubbornly oppose the eviction application further;
Be open to settlement negotiations with the tenant and keep in mind that “a bad settlement is usually better than good litigation”. If the tenant agrees to vacate on a specific date, the attorney will make this an order of court which essentially has the same effect of a court granted eviction order and may save the landlord the costs of an opposed application and the costs of the sheriff, as well as cut down on the landlord’s rental losses;
If a landlord wants to pursue a claim against the tenant for arrear rental and damages, it may be advisable (rather than approaching a court and possibly “throwing good money after bad money”) to rather approach the Rental Housing Tribunal yourself. You don’t need attorneys in the Rental Housing Tribunal
(although you can appoint one if you like) and any order granted by the Rental Housing Tribunal has the same effect as an order granted by a Magistrates Court;
Once a tenant vacates the property, try to ascertain where the tenant has moved to. This would avoid having to trace the tenant should a landlord wish to proceed to try to claim the arrears and/or the legal fees from the tenant. It is always a good idea to get the tenant’s work address and details of his or her close family or friends, when you entering into the lease, so that you are “armed” with this information if you ever need it at a later stage; and lastly
Engage the services of an attorney who has experience with evictions. Instructing an expert will provide you with the best opportunity to execute a cost effective and efficient eviction.