However, if the tenant is willing to communicate,
make the arrears known to them and the course of
action you intend to take if the breach of their lease
is not remedied.
It is important to note that action such as changing
lock s, interr upting ser v ices, agg ressive and
threatening action and forcible eviction without
a court order are unlawful acts as per the Rental
Housing Act. Nothing beats fair, f lexible and
reasonable communication and compromise.
Decisive action
The Consumer Protection Act (CPA) applies to the
majority of residential leases and requires that the
notice of breach to the tenant gives them 20 business
days to remedy their arrears.
Essentially what this means is that if immediate
action is not taken when the rent is late, the landlord
will find themselves a month down the road with a
possible second unpaid month looming.
If the breach is not rectified within the 20 business
day notice period, the landlord may proceed to
terminate the lease agreement in writing, notifying
the tenant that they are in unlawful occupation
of the premises and that they need to vacate the
premises immediately.
Most courts will require that due process is
followed and it must be proven that adequate notice
was given as per the CPA. An eviction can often
take as long as three to four months, depending on
the circumstances.
Legal action
If such a notice fails employ the services of an
attorney to further communicate with the tenant
and to advise on further action by using a specialist
contract or lease attorney. If you have clear, written
communication you can employ the attorney to
www.reimag.co.za
approach the courts for a ‘rent interdict summons’ to
recover arrears and, in some instances, the legal costs
incurred. The court procedure can be a long-winded
and costly one, but if you feel the relationship with
your tenant is so strained and they are refusing to
move, it is the best course of action.
“The most important aspect
of dealing with a defaulting
tenant is not to let a day go
by without taking action”
In some cases the landlord may approach the
courts with a ‘Section 32’ application, which
is an attachment of property in security of rent
application, permitting the sheriff of the court to
immediately itemise and remove the contents of the
property until such time as the arrears are settled.
This application is usually used where the landlord
believes that the tenant is about to remove the
movable property upon the said premises in order
to avoid the payment of the arrear rental. Rea warns
that this action can result in backlash from the
tenant which can be devastating to the property as
the response may occasionally be vindictive.
The most important aspect of dealing with a
defaulting tenant is not to let a day go by without
taking action. Many tenants will abuse the grace
shown by landlords and stretch the situation as far
as possible. It is important to get things in writing
and send registered letters or emails with ‘read
receipts’. Remember to quote elements of the lease
and state amounts owed with original documents
i nd ic at i ng ut i l it y a mou nts outsta nd i ng. I f
adequate records are kept and the landlord acts
decisively, there is no need to lose sleep over a
delinquent tenant.
RESOURCES
Grant Rea, RE/MAX
Residential Handbook 2014
33