8 Property Experts Share Their Tips for a Landlord to Successfully Evict an Unlawful Occupant From a Residential Property

On 5 June 1998, the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act No. 19 of 1998 (known as the PIE Act) was introduced into South African law. In terms of the PIE Act, landlords cannot evict an unlawful occupant from a residence without first obtaining court intervention.

This holds severe consequences for landlords struggling to evict nightmare and/or non-paying tenants from their property. A court process is by nature lengthy and costly. If a landlord does not precisely follow the correct court procedure for obtaining an eviction order, he/she could end up having to start the whole process over again.

Worst case scenario, when a landlord attempts to unlawfully evict a tenant, is that the tenant could end up staying on the property indefinitely. Landlords can also incur the legal fees of the tenant on top of the loss of rental income.

Bottom line is that there is no shortcut to the eviction process. The only way a landlord can avoid the lengthy eviction process is by reaching a settlement with the unlawful occupant outside of court. While the landlord is consistently losing income and incurring fees, the legal fees of an unlawful occupant wanting to prolong the process could be a lot less than their rent.

To deal with nuisance tenants, we have asked 10 property experts for their best tips to successfully evict an unlawful occupant from a residential property. These tips will help to make the eviction process as painless as possible for landlords.

Michelle Dickens, Managing Director of TPN Credit Bureau

The very best tip is to avert the eviction process entirely by vetting your tenants thoroughly. In most cases, it is the tenant who has not sufficiently been vetted that refuses to vacate or causes havoc either by affecting other tenants negatively or causing damage to the property.

In rentals, just like in any other investment there is an inherent risk. The risk lies with the type of tenant you allow into your investment. By choosing the right tenant you significantly diminish that risk.

That being said, if you find yourself having to evict a delinquent tenant, these 3 tips are imperative in ensuring a successful eviction:

1. Don’t spoliate, litigate: don’t lock the tenant out; don’t switch the electricity off; don’t move someone else into the premises. It may come as a surprise but the fastest way to get rid of a squatting tenant is the legal route.
2. Choose the right litigant: choose an attorney that specialises in evictions. As with any other matter that has serious financial consequences, seek out the expertise of a professional with industry specific experience.
3. Move Fast: don’t wait to see what happens before you send a letter of demand. In fact, send it the day after rent is due and not paid. Any procrastination on your part could contribute to a very long wait before an eviction order is granted.

Jacqui Savage, National Rentals Business Development Manager at RAWSON

Once the lease agreement has been successfully cancelled, the landlord is no longer dealing with the tenant but an unlawful occupant. Up to now the process has been straightforward and can easily be handled by the landlord. From this point on, an in-depth knowledge of the relevant eviction legislation, and experience, could mean the difference between weeks or months with equal costs and losses.

Having said the above, it is imperative that the landlord follows the correct steps to cancel the lease before applying to a Magistrates Court or utilising the services of an Eviction attorney, which are:

1. Landlord serves notice to Tenant to rectify the breach.
2. If no rectification occurs, the Landlord can terminate the lease contract.
3. At this point, it is advised to consult an Eviction attorney to ensure a smooth eviction process.

Harry Meyburgh, Director of Etchells & Young

1. With evictions, prevention is always better than the cure. So vet your potential tenants fully before agreeing to sign any lease with them.
2. Unless you are a seasoned landlord, use the services of a respectable and professional estate agency.
3. Always ensure that you have a valid lease agreement signed by the tenant before they take occupation of your property. The lease must comply with current rental legislation (including the Rental Housing Act and Consumer Protection Act).
4. Always try to be fair and reasonable and find amicable solutions when facing tenant problems.
5. Know your rights and know the Tenant’s rights.
6. Give the correct written notice to the tenant if they do commit a breach of the lease. This is usually 20 business days.
7. Seek help if you get here!
8. Allow them to remedy the breach within the terms of the lease or relevant law.
9. DO NOT take the law into your own hands by removing doors, changing locks, disconnecting services or trying to force them out.
10. DON’T try to take shortcuts with an eviction and your top priority now must be to try to get the tenant to vacate before the eviction process even begins. Compromise if you must, evictions are expensive and you will rarely get you outstanding rental and legal fees back from an evicted tenant.
11. If you know that the tenant is bad news and must be evicted, act decisively and persevere. The sooner the better, the problem only gets bigger the longer you wait.
12. Get legal help, preferably from a property specialist attorney, and let them handle the eviction in the correct and lawful manner and in accordance with The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (known as the PIE Act).

Nicky Rossouw, General Manager at Rent-Rite

When placing a tenant, make sure you do your due diligence and have all the correct paperwork in place. By having a proper credit check done on all prospective tenants, you can avoid evictions 99% of the time by weeding out applicants with a bad credit history or prior disputes with landlords. Having a proper rental agreement in writing is paramount as this sets the terms and conditions of the rental. Also make sure to keep proper records of all rental monies received, including the deposit. If the matter goes to the rental tribunal or court these documents will be used to settle the matter and any inconsistencies might be used against you.

A lot of landlords are sympathetic and want to give tenants more time to amend the breach, but the longer you wait the longer it will take to get the tenant out. Don’t wait to get the process started, it can be stopped at any time, but the proper waiting period after the letter of demand has been sent must always be followed before an application of a court order can be done and this drags out the process.

If the tenant is in breach of contract and you wish to evict him, make sure that you follow the correct legal procedure so that if he refuses to evacuate the premises willingly and you have to take the matter to court and get a court order of eviction, the matter will not be thrown out due to non-compliance of the Rental Housing Act. This means you must give the tenant proper notice of the breach (Registered 20-day letter of demand) and keep a record of all correspondence so that you can prove to the court that all in your power was done to get the matter resolved.

Lastly, use the right tool for the right job: when you have to obtain a court order of eviction, use attorneys with experience in evictions. That way the case may run smoothly and quickly without delays – getting your property back into your control as soon as possible.

Caroline de Wet, Estate Agent at Pam Golding Property

Author of Caroline At Home

Owning a second property is an amazing way to start build wealth and can be done by using a bank’s money and getting your tenants to pay for more than half of the asset. However, this form of investment is often referred to passive income which creates the idea that once the property has been bought and the tenants placed the owner (landlord) can sit back and watch the cash roll in.

The truth of the matter is that there is actually quite a bit of work involved. The most important step in dealing with tenants is the selection of tenants, it is crucial to do proper checks on your tenants starting with a credit check and a tenant check. Most estate agents will run these checks for you for a reasonably small charge. By doing this you eliminate a huge portion of the risk of problem tenants. I also conduct an interview process plus I try to meet them at their place of employment to get a more holistic view of the person.

The next step is to get a thorough lease and to sign the lease with the tenant, explaining every clause to them and to make it very clear that when they are in breach of contract the landlord has the right to end the lease and demand that they vacate immediately.

Once the tenants take occupation they often test the waters by either paying late of paying short by a couple of hundred rand, usually not more than R500. It is crucial for the landlord to act immediately by calling the tenant and informing them that they are in breach of contract and should vacate the premises before the end of the week so that they can still receive some of their initial deposit back to assist them in securing a new rental home. This usually scares them enough to rectify the situation immediately and it usually never happens again.

However, there are situations that arise where tenants stop paying and decide that you can’t evict them because they are protected by the law. Many people are mistaken by believing that the PIE (prevention of illegal eviction) Act applies between a tenant and landlord. The purpose of this Act was to protect persons who have been employed on farms for generations and are then unceremoniously evicted by a new owner.

The secret here is to act as quickly as possible in order to minimise your exposure because the legal process can be time-consuming and cost the landlord a lot of money.

MC Coetzer, Attorney & Mediator at Chris Fick & Associates

The best advice we can give to any landlord with regards to residential eviction proceedings actually precedes the actual eviction proceedings and it relates to the effect of Section 14 of The Consumer Protection Act. In terms of Section 14, the landlord is, irrespective of the terms of the Lease Agreement, obliged to give a tenant twenty business days’ notice of any breach before the Lease can be terminated by the landlord.

It is imperative to immediately act on any non-payment of the rental by the tenant because we have found that a tenant who defaults in the payment of rental even once will invariably become a problem tenant in due course. The protection afforded to tenants by the Consumer Act means that a landlord will effectively have to wait an additional month before he/she can even start with eviction proceedings while at the same time not receiving any rental income from the property.

Marine Opperman, Attorney at Madeleyn Inc Attorneys

When considering eviction, the footwork leading up to the application is crucial. It is crucial to the success of such application that the landlord adheres to the specific notice period timelines as set out in the lease agreement and the various relevant legislation(s). The Prevention of Illegal Eviction From and Unlawful Occupation Act (PIE) clearly states that where procedural steps have not been complied with an eviction application will not succeed.

It happens regularly that owners and landlords attempt to administrate the whole process, in an effort to save legal costs, on their own. The attorney is only briefed on the matter when an eviction order is sought, which is usually too late. The reality is that there are various acts to consider when sending a letter of demand and/or cancellation. Depending on the reason for demand/cancellation the time period that needs to be afforded to each tenant will differ. Without this knowledge, tenants are often not given enough time or are given too much time to vacate a property. In both instances the owner of the property incurs substantial losses, be it of rental income or other civil/contractual liabilities.

It is therefore advised that you seek legal advice from an attorney with the relevant PIE experience before you send out any correspondence to a tenant. Your attorney should be able to ensure that the right procedures are followed from the get-go and that the eviction application, if it comes to that, is finalised in the shortest possible time at the lowest possible price.

You would spend money on a doctor to ensure that your health is attended to by a doctor instead of waiting until such time that the hospital is the only option, why not do the same with your property?

Guan Potgieter, Associate at Smith Tabata Buchanan Boyes

In order to evict an unlawful occupier from a residential property, the procedure in terms of Section 4 and 5 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) must be complied with. In essence, the PIE Act gives specific application to Section 26(3) of the Constitution of South Africa which reads: “No one may be evicted from their homes, or have their homes demolished, without an order of court, made after considering all the relevant circumstances.”

Although many tenants believe that the PIE Act will prevent a landlord from evicting them from a property once a lease has ended, if they cannot find alternative accommodation, this is not necessarily the case. The individual facts of each case will be given careful consideration before a decision is made on whether or not to evict.

The recent case of Pierre Coetzee vs Pipet Place Eiendomme CC provides some insight into what the courts will take into consideration.

Court finds in favour of landlord

This is a matter that went on appeal from the Empangeni Magistrate’s Court. In essence, the magistrate found against the tenant and evicted him after his lease had ended.

Coetzee had signed a lease for a property belonging to Pipet Place Eiendomme. The lease ran for 17 months and there was no provision for renewal. However, once the lease had ended, the tenant refused to move out of the property despite the owner giving the required one calendar month’s notice.

The tenant initially cited three reasons for not vacating the home:

There was a dispute between the parties pending before the KwaZulu-Natal Rental Housing Tribunal. The tenant argued that:

• the owner had failed to comply with his duties as landlord in respect of maintaining the property; and
• he had a lien over the property insofar as improvements were concerned; and
• he didn’t have access to alternate accommodation.

On appeal, the tenant abandoned the first two reasons for staying in the property and relied only on the fact that he couldn’t find alternate accommodation. The important factors here are:

• the tenant lived alone;
• there were no elderly people or children involved; and
• the tenant wasn’t destitute.

The tenant’s personal circumstances

The tenant argued that the magistrate had failed to take all his personal circumstances into account as required by PIE. However, the appeal court disagreed and found that “the learned magistrate was acutely aware” of the tenant’s personal circumstances and financial position.

The fact that it was difficult, but not impossible, to find alternative accommodation counted against the tenant and the appeal court held that there was no merit to the complaints raised by the tenant.

Interestingly, it appears that the reason the tenant was so reluctant to move was that he couldn’t find a similar property to lease for the relatively low sum of R3000 per month. And, although he was employed, he believed that PIE would force the landlord to renew the lease.

What the judge said

The appeal judge found: “The evidence established that after the monthly tenancy was validly cancelled, the appellant managed to remain in unlawful occupation and rent-free for a period of about nine months. I further consider that the appellant cannot be said to be disadvantaged in any way, nor is he poverty-stricken. He is self-employed and capable of generating an income for himself. I see no reason why he cannot find suitable alternative accommodation. It is time that he did. It follows that the appeal cannot succeed and must be dismissed.”

It is clear from the above that the rights of a property owner are still regarded as one of the cornerstones of modern law. Landlords should not be wary of taking the court in their confidence and ask for assistance when they are struggling with a tenant who refuses to vacate.