So you have leased out your property and, at first, the tenant was timeous with his/her/its payments, but, after a few months the payments are received later and later before they stop completely.
What do you do? How do you evict the tenants without performing an illegal act?
In this article we attempt to simplify the eviction process specifically with regard to residential, commercial and industrial properties.
First and foremost, whether we are dealing with a residential, commercial or industrial property, a landlord may not evict a tenant without a court order.
The process of obtaining the court order differs depending on the type (residential, commercial or industrial) of property.
If we are dealing with residential property, we are compelled to use the PIE Act (Prevention of Illegal Eviction from and Unlawful Occupation of Land Act) and are compelled to institute legal proceedings by way of application.
In Commercial and industrial properties one is entitled to seek ejectment by way of a Summons with the process being a lot less strenuous.
Firstly, before any legal proceedings should commence it is vitally important that the legal right that the tenant had to the property is terminated. I cannot believe how many matters that come across my desk where parties have instituted legal proceedings without making sure the tenant is an unlawful occupier.
With residential properties, an applicant must (after making sure that the tenant is an unlawful occupant) deliver an application to the unlawful occupant. The duration of time that the unlawful tenant has been in occupation of the property will depend on the size of the hurdles that the applicant must overcome.
I would not suggest that this process is attempted by a lay person and strongly suggest that an attorney who specialises with evictions is consulted with to assist the landlord. The reason being is that the PIE Act is one of the few Acts in South Africa that place extremely stringent requirements on the applicant. Should any of these requirements not be complied with, it may result in the application being dismissed with costs.
Commercial and Industrial properties allow for a slightly simpler process in that an eviction can be obtained in about half the time and with half the effort as that of a residential property.
An ejectment from commercial and industrial property may be taken at a default or summary judgement stage within the legal process which allows the landlord ample opportunity to obtain a court order without having to run a matter all the way to trial.
Of course, each matter should be considered on its own merits but should I want to advise a landlord how to make their life easier, the advice would be that they make sure they have a decent lease in place.
I urge landlords to seek legal advice should they not have a comprehensive lease agreement. I further suggest that attorneys are consulted with prior to a transaction taking place rather than after the proverbial poo has hit the fan as a client can significantly reduce the risk of disputes arising should an attorney assist from the outset.
Another hint to landlords is that they should properly qualify their tenants prior to signing a lease. Perform reference calls, credit checks etc. to see that the tenant does not have a history of dubious activity.
In conclusion of this article I want to quote a saying common amongst attorneys and which I direct to all landlords – “short agreements lead to long litigation”. Please take heed.