Is your tenant an illegal occupant?
There’s a thorny issue in renting and that is when your tenant is an illegal occupant of your apartment.
Let’s consider the issue in this blog.
If a rental contract is breached by a tenant and, after receiving notice, he does not undertake the necessary rectifying actions in the specified time, then the landlord may cancel the contract. The tenant is then considered an illegal occupant.
If the occupant refuses to perform his duties in terms of the rental agreement, then he will be found to be in breach of his contract. As an example, the tenant refuses to pay his rent on time. The landlord must inform the tenant in writing that he has decided to cancel the rental agreement so that the tenant, within a reasonable time or a time agreed between the parties, can vacate the premises.
If the tenant chooses to ignore the cancellation notice, and continues to occupy the premises, he will be seen as an illegal occupant. The same principle applies when the tenant continues to occupy the premises after the termination of the rental agreement. An illegal occupant may be evicted from the premises by the landlord. This process will occur in a magistrate or high court so the services of an attorney will need to be retained.
There is no longer a common law right to evict a tenant. All landlords and tenants have to follow the processes and procedures of the PIE Act [Prevention of Illegal Evictions Act, 19 of 1998]. According to PIE, before an eviction may occur, the tenant must be informed about the pending action against him. At least 14 days’ notice must be given of the trial and its date and location. This notice must also be sent to the respective municipality.
On the date of the hearing, the court will consider various factors, such as, if the tenant is an illegal occupier, if the landlord has reasonable cause for eviction and the question of alternate accommodation will be considered. All of these factors will be considered before the court makes a decision to issue an eviction order or not. It is currently a criminal act to evict a tenant without a court order. In turn, constructive eviction, such as disconnecting the electricity or water, is also illegal and considered a criminal act.
The type of action or application that a legal advisor will propose will depend on the facts and circumstances of the case. These actions or applications will be heard in the magistrate or high court. If the legal process is successful, the eviction notice will be issued after which the landlord may proceed to evict the tenant.
There are certain clauses that must always be in a rental contract in order to protect both parties against lack of payment or breach. These clauses include: time limits, court jurisdiction and responsibility for costs if the parties decide to go to court.
The PIE Act clearly sets out the steps and procedures that should be followed to obtain an eviction order. Various definitions and interpretations of other terms are set out and clarified as they apply to the landlord and the tenant. These should be clearly documented in the rental agreement that the parties sign.
The moral of the story is simple: If you wish to protect your investment in the face of an errant tenant, you need to obtain professional help early in the process. The PIE Act is not against landlords but it certainly does protect the rights of tenants; but not without holding them accountable for proven, unacceptable breaches of a well-compiled rental contract.
Yours in Property.
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