"LANDLORDS FACES PROBLEMS AGAINST THE AMOUNT OF TENANTS ARMOUR FOR SIMPLE EVICTION"

by "LANDLORDS FACES PROBLEMS AGAINST THE AMOUNT OF TENANTS ARMOUR FOR SIMPLE EVICTION" on 01-04-2018 in News from advertisers

With the economic crises of uncertainty, buying property is uniquely one of the major and possibly utmost worthwhile venture choices that an owner can make. Property increases in value and does not depreciate. Possessing your own property generates a lot of security for businesses, especially if they own their own premises. It also permits owners to guarantee the facility by ensuring that the premises is appropriate for the industry or business ventures s/he is currently in. It also ensure that  one does not need to pay rent, as paying rent is paying for someone else’s bond in which they reap the rewards of investment. 


As much as investing in property has its positive financial aspects in business ventures, it also possesses wagering of your investment returns. 


I could try to “sugar-coat” the negative aspect of defaulting tenants, but the reality is: LANDLORDS SUFFER whether they are successful in eviction or not. 


It’s every landlord’s fear to be left with a tenant who does not pay rent or is not maintaining the premises in good condition and refuses to vacate the premises. Although they breach the terms of the contract, the Landlord still has an obligation to abide by paying h/er bond; rates and other utility services. Such burden on the landlord creates financially difficulty and stress.  


Eviction would seem as a simple process on the outskirts, but unfortunately, eviction is never an ideal situation and burden is placed on the landlord financially. 
  
My father has many commercial premises and still roams on the old-fashioned threats and simple “removing of the tenant” by his own process. It had to be brought to the attention, that unfortunately, although he has a right to his premises due to default, there is an Act, namely Prevention of Illegal Eviction Act, which guides this process. Failing to abide by this process will result in legal costs; stretching out of the tenant remaining in the premises and in most cases, if done incorrectly, could result in imprisonment. 
  
Although the Prevention of Illegal Eviction Act (hereinafter referred to as “the Act”) does not intentionally discriminate against the Landlord, it requires the Landlord to follow a constituted process for dealing with problematic tenants. This process enables the Landlord to legally enforce eviction, but at a financial burden. South African housing law does place the rights of the tenants in high regard, especially in residential leased premises, and without doubt, these tenants take advantage of the unprepared landlords. 
  
Eviction is a long process which is drawn out by the tenants, which causes landlords to not receive rental hence resulting the aforementioned discussion of financial strain on the landlords. 
  
I will discuss certain aspects which Landlords should note when deciding to lease premises and once leased how to attend to the tenants whom breaches their obligations in terms of their contact. 


  
PREVENTING THE NEED FOR EVICTION: 
  
One cannot prepare for the possibility of eviction proceedings to be instituted, but one can minimize the need to, alternatively make it easier for landlord’s rights to be secured. 
It is therefore important to ensure that your first step is focusing on the Lease Agreement which abides by the legal requirements and ensures that there are no “scape-goat’ clauses for the Tenant. A rock-solid contract is the most imperative instrument for the Landlord and is vital that all essential background checks into the Tenants financial and employment history is conducted. The Landlord need to ensure that their contract focuses on the aspects of Breaching of the Contract, as this is the first step in Eviction. 


Another clause one should focus on is the deposit request. Sometimes tenants negotiate on terms of the lease agreement by requesting that deposit remains minimal. In my opinion, place a deposit of at least two month rental if not more. This will be a means of security for payment of rental should eviction process be instigated and should secure the Landlord for period of rentaly during which eviction process is enacted. 
Unfortunately, sometimes the Landlord will still have to end up evicting the tenants. This is a legal process. Any deviance from the standard eviction process abates your probabilities of successful and speedy eviction; resulting in a long “dragged-out” process of which is costly.  


  
HOW COSTLY IS EVICTION: 
Evictions tend to place financial strain and stress on the landlord on stubborn tenants who refuses to vacate the premises and decides to abuse the intention of the Act, resulting in the landlord to appoint legal professionals to attend to the legal eviction of tenants. 
  
In some instances, after Tenants receive their first notice in form of a letter to vacate, they decide to not challenge the process. Unfortunately in most cases, stubborn tenants fight and challenge the landlord. The longer the fight, the more financial strain is placed on the landlord.  
  
It is sometimes best to lose out on rental by negotiating with the tenant to vacate the premises and just writing off outstanding rental than to proceed with eviction.  
  
Opposed eviction escalates depending on the defence that the tenant raises. Even when the Landlord finally gets the tenant out, he may still have to battle to reclaim all legal costs and outstanding rental amounts. Legal costs are not only the attorney costs, but also the sheriff costs to physically remove the tenant with their belongings. 


  
HOW LONG DOES EVICTION TAKE? 
  
If the Landlord has a tenant who breached the terms of the contract, it would be a simple “open-and-shut case”, of which is costly but eventually the Landlord will succeed. The eviction process takes a minimum of two to three months from date of service of the letter of demand and cancellation, with the minimum fourteen day notice period as prescribed by the Act and the Court’s allowance of a period of one month for the tenant to vacate the property being taken into account. This is usually for an open-and-shut case. 
  
Wait do not get too excited yet, two to three months period is if the Tenant doesn’t decide to proceed to trial of eviction. In my experience – this rarely happens. Tenants have a way of getting “back to the landlord’ for deciding to evict them by challenging the process. 
  
Usually the first step in eviction is to notify the tenant of their breach of contract and provide them with one months’ notice to vacate the premises. This buys the Tenant already one months “grace” to remain in the premises. Only after the lapse of the one month, can the Landlord proceed with the next step of eviction procedure. 
  
Contrary to most Landlords belief, unfortunately the eviction process can take much longer even though it is a “open-and-shut case’. Such circumstances usually arise in residential leases in which the court focuses on the tenants well-being, namely the court looks at factors such as if the tenant is a financially dependent head of the household with young children, disabled or elderly as well as whether the Tenant is employed or not. The courts will grant eviction, but noting the circumstances of the tenant, the court could grant extended time period for the tenant to find alternative accommodation prior to being evicted. This means that in some cases the court could grant few additional months, in which the Tenant will remain in the premises without paying rental. Such social factors are not required in commercial leased premises, which would mean that extension of time could be limited. 
  
Tenants find many alternatives and loopholes to delay the process of eviction. One could say most are very creative in their defence by using delaying tactics such as relying on technical aspects of eviction which results in loss of rental costs and more legal straining costs on the Landlord. 
  
To further understand the length of eviction, one has to have a brief understanding on the eviction process. This can be briefly explained below. 
  


EVICTION PROCESS: 
When a tenant defaults in h/er obligations in terms of the Contractual Lease Agreement, the landlord has to follow legal procedural step. 


Firstly, the landlord must have a notice served on the defaulting tenant and all who occupy the premises. This notice will provide that the Tenant rectifies their default, usually in situations in which rental has not been paid, within a prescribed number of days. In such cases, if no rectification has been made by the Tenant to rectify the breach, the landlord needs to cancel the Lease Agreement before instituting the Eviction Notice to vacate. In cases where eviction is inevitable, the Eviction Notice should state that the Lease Agreement is cancelled and he should further provide for thirty days’ notice, in order for the Tenant to vacate the premises, failing which eviction proceedings will be referred to court. It is important to note that prior to attending to Eviction Application, the Landlord must ensure that he has provided a notice stating that the Lease Agreement has been cancelled as it will be up to the court to decide if your contract was legally cancelled and you have grounds for eviction. 


Secondly, the Landlord needs to approach the court for issuing of the eviction application. The court that the Landlord will approach is dependent on the area of jurisdiction in which the leased premises is situated. After the court issues the application, a date is provided. This date provided will be determined on the availability of the matter to be heard. This application should be served by the sheriff of the court fourteen days prior to the hearing of the application, on the Tenant and all who reside on the premises as well as on the Local Municipality in which the premises is located. 


Thirdly, the first court appearance in which the application is heard is where the Tenant needs to prove that s/he has a valid defense. In most cases the Tenant would appear and state that they require legal assistance and would like the matter to be postponed in order for them to obtain legal advices. I has been in my experience that tenants who do not have finance to obtain legal representation, would approach the next court appearance and state that they still have not found legal representation, and have applied to various legal representative legal aid, which provides services for free to the public. Eventually in some cases, after the matter has been postponed for a few times, the Tenant obtains legal aid. When the legal representation appears on behalf of the Tenant, they tend to request a further postponement in order to familiarize themselves with the matter and such postponement period could be for weeks, another month or more. The legal aid deals with so much ‘free public assistance” matters, of which they will require more time than usual to attend to familiarizing themselves with the matter. This is prejudicial against the Landlord, but unfortunately, the Tenant has a right to a defense and legal representation. As seen in this step, it is unfortunate and one can see in most cases on the outskirt that the Tenant is using delayed tactics, 
but it will be on the Landlord to prove it, of which in most cases is not as easy said than done. 


Fourthly, when both parties are ready to proceed, they will request the court at the appearance to provide a trial date if there is a valid defense made by the Tenant.  If there is no valid defense, the court provides an order in which a date is provided in which the Tenant should vacate the premises. The order will also state that should the Tenant not vacate the premises on date stated of vacating the premises, then a “warrant of eviction”  can be issued to the sheriff giving authorization for the sheriff to remove the Tenant’s possessions off the premises. This will inevitably be the end of the case 


Fifthly, should the trial date be set-down, certain documents and evidence will be exchanged between parties and on date of trial, the matter will be argued.  
After reading the above, one tends to feel that investing in leasing of premises is not worth it. Unfortunately as mention, positively Landlords obtain their investment returns, but on the downside, landlords should note that some tenants will delay eviction and usually say:  “…I can hold up any eviction - even if the landlord had legal rights, I could hold it up for a year” (quote by Ed Lee). 
Remember you are the Landlord, you should secure your investment by ensuring your contract is sound and your rights are protected in cases of breach. On the face of it, your future Tenant will seem like s/he is a decent individual with no intention of being malicious, but I guarantee you, in most cases; they could be your enemy in the end. 
  
(NOTE: this article is for information purposes only. Each case depends on merits of matter and should be consulted with an attorney) 
 

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