In our South African law the tenant is more protected than the registered owner of property, and for this reason one should take extreme care when choosing a tenant for your property, and even more so, ensure that you enter into a water tight lease agreement to protect your own interests.
If you are a landlord or rental managing agent, you most probably had the unfortunate experience where a tenant reneges on rental payments. One’s first reaction is to take the law into own hands and immediately evict the tenant and change the locks to the property to prevent any further access by the non-paying tenant.
The aim of leasing property is obviously to gain financial benefit from your fixed investments. But of course there is always the issue of a bad tenant that can upset the applecart. Just as a landlord has certain obligations towards a tenant, so a tenant has a duty to pay his rent on time, which is a usual term and obligation in a lease agreement.
As tempting as it may sound to resort to self-help, taking the law into your own hands is not the answer and will only end up in making the situation worse. Taking the law into your own hands, regardless of the tenant being in arrears, is unlawful.
If you change the locks without the tenant’s consent, it would be an unlawful deprivation of the tenant’s possession which is prohibited in terms of the Prevention of Illegal Eviction and Unlawful Occupation of Land Act (“PIE Act”) and your tenant can obtain an urgent court order against you with costs, even if the tenant is in arrears with his or her monthly rental, requiring you to reinstate the tenant in his use and enjoyment of the rental property. Your tenant could also possibly refer a complaint to the Rental Housing Tribunal.
But what should a landlord do then? When a tenant fails to pay rent, he or she is in breach of the lease agreement. The landlord must notify the tenant of the breach and request the tenant to rectify the breach. If the tenant, despite the landlord’s demand, fails to rectify the breach, the landlord can cancel the lease agreement and start eviction proceedings in terms of the PIE Act if the tenant refuses to leave the property.
What the above shows is that there are legal steps that can (and should) be taken where you have a bad apple tenant. What you should NOT do is to take the law into your own hands.
Contact Wietz Viljoen / Reuben Shaer at WVA INC. to assist you in dealing with your bad tenant, as the PIE Act has certain prescriptive provisions that have to be strictly adhered to.
WVA – Wietz Viljoen
This article is for general information purposes and is aimed at advising the public. It should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.