It is sadly a product of tough economic times that many people find themselves simply unable to afford basic expenses, such as monthly rental. By now, most if not all landlords are aware of the provisions of the PIE Act, protecting the interests of tenants from illegal and unlawful evictions and, one might venture to state that most landlords feel that the rights and interests of unlawful occupiers are protected to their detriment. The reality is however that all landlords must follow the procedures prescribed in the PIE Act even if a tenant is in unlawful occupation of leased premises.
Let’s have a look at what these procedures are.
This brief article is not intended to provide an exhaustive explanation as to the manner in which a tenant may breach a lease, the requirements to place the tenant to terms or other related legislation which may play a role when a tenant is in breach of a lease agreement–it is simply intended to explain the most basic steps and procedures required from a landlord to recover unpaid rentals (and other amounts) due in terms of a lease agreement and to have the tenant lawfully evicted.
BREACH OF THE LEASE AGREEMENT
If the tenant has breached the terms of the lease agreement, the most important consideration is the provisions of the “Breach Clause” in the lease agreement and the requirements set out therein. Some “Breach Clauses” entitle the landlord to immediately cancel the lease agreement and proceed with legal action; in other instances the landlord may be required to first put the tenant to terms to remedy his/her breach within a certain period of time, before legal action may be taken and only in the event that the breach had not be remedied.
Section 14 of the CPA appears to stipulate that a lease agreement may only be cancelled by the landlord in the event of the tenant having failed to remedy his/her breach of the lease agreement within a period of 20 working days.
The provisions of Section 14 of the CPA is however not peremptory in this regard and it is the writer’s opinion that a landlord may cancel immediately upon a breach, provided that the “Breach Clause” in the lease agreement provides for this.
SUMMONS WITH AUTOMATIC RENT INTERDICT
Two distinctly different procedures are followed when a landlord wishes to claim unpaid rental (or any other unpaid amounts) in terms of the lease and proceed with eviction steps. A summons is issued in terms whereof the following relief will normally be claimed on behalf of the landlord:
1. Confirmation of the cancellation of the lease agreement;
2. Payment of whatever amount may be due to the landlord;
3. Interest on the amount claimed at the interest rate specified in the lease agreement or if not so specified, at 15.5% per annum;
4. Costs of suit; and
5. Damages in the event of the tenant refusing to vacate the premises (unlawful holding over).
In this regard it is important to mention that the landlord may be able to recover all of his/her/its legal costs, provided that the terms of the Lease agreement make provision for the tenant to pay costs on an attorney and own client scale. The summons is served on the tenant through the sheriff of the Court–
the tenant has 10 (ten) working days within which to indicate an intention to defend the matter, failing which the attorney for the landlord may apply to Court for a Default Judgment, for the relief as
set out above, and a Warrant of Execution.
A Warrant of Execution will entitle the sheriff of the Court to attach all movable assets that may be found on the leased premises to be sold in execution (by public auction), in an attempt to recover all monies due to the landlord.
A summons may of course be defended by the tenant, in which event the procedure is more complicated (a defended action is beyond the scope of this article).
IMPORTANT CONSIDERATIONS FOR LANDLORDS
1. Ensure that a written lease agreement is in place prior to any tenant taking occupation of leased
2. Request an attorney to review the provisions of the lease agreement to ensure that your rights as landlord are fully protected in the event of litigation.
3. Ensure that the tenant pays a deposit equal to at least 2 months’ rental to enable you as
landlord to deduct any monies due by the tenant in terms of the lease agreement (including rental, damages for unlawfully holding over and damages to the leased premises).
4. Take immediate action in the event of a tenant defaulting on his/her obligations in terms of the lease agreement – if a breach is not remedied, it could take up to 2 months to evict the tenant before an alternative, paying tenant, can take occupation.