Getting rid of a tenant not paying rent

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Re: Getting rid of a tenant not paying rent

Unread post by cage » Wed Mar 27, 2019 1:02 pm

C Africa wrote:
Wed Mar 27, 2019 12:14 pm
.. but the law does NOT provide this person with ANY other rights in terms of claiming any specific level of service of accommodation.
I think you may find the law does provide rights.
You may not in any way pressure them to leave, whether that is through termination of services, making life difficult or unpleasant to live at the property etc - that would be an illegal eviction and if they were so inclined you would end up on the wrong end of the stick.

Many people do follow this route and rely on tenants not making a fuss.
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Re: Getting rid of a tenant not paying rent

Unread post by Fransw » Wed Mar 27, 2019 1:04 pm

cage wrote:
Wed Mar 27, 2019 1:02 pm
C Africa wrote:
Wed Mar 27, 2019 12:14 pm
.. but the law does NOT provide this person with ANY other rights in terms of claiming any specific level of service of accommodation.
I think you may find the law does provide rights.
You may not in any way pressure them to leave, whether that is through termination of services, making life difficult or unpleasant to live at the property etc - that would be an illegal eviction and if they were so inclined you would end up on the wrong end of the stick.

Many people do follow this route and rely on tenants not making a fuss.
OK so then its an illegal eviction. So what! What then?
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Re: Getting rid of a tenant not paying rent

Unread post by Falafel » Wed Mar 27, 2019 1:09 pm

Fransw wrote:
Wed Mar 27, 2019 1:01 pm
Falafel wrote:
Wed Mar 27, 2019 11:36 am
Fact is you are on the back foot with a tenant, paying or not. That is why I sold my properties. Most of the advice above is untrue. What Jack said...

Beware the tenant who doesnt pay and even more the one who knows his/her rights. Aggression and unilateral moving in might work for a tenant who doesnt know what their rights are, but you might end up opening a can of worms if someone is aware of their rights and a few months rent is minor compared to the damage you may do to yourself.
:? What "damage"? And what can of worms are you talking about!...
My understanding is along the lines of (from a website):

Landlord serves notice to the Tenant to rectify the breach.
If no rectification occurs, the Landlord can terminate the lease contract.
Give notice to the offending Tenant that the Landlord intends to evict the Tenant through the courts.
Apply to court to have a “Tenant eviction order” issued to the Tenant.
The court issues the “Tenant eviction order” 14 days before the court hearing to the Tenant and the municipality that has jurisdiction in the area.
Court hearing occurs where Tenants just need to prove that they have a valid defense.
If there is a valid defense, then a trial date is set otherwise if there is no valid defense, a “warrant of eviction” is issued to the sheriff giving authorisation for the sheriff to remove the Tenant’s possessions off the premises.
A trial begins or the court sheriff removes the Tenant’s possessions off the premises

If not done correctly tenant can apply for “spoliation”, which entitles the tenant to approach the court to give him/her the leased premises back and to order the landlord to pay the tenant’s legal fees.

Go figure.... and I am not a lawyer in case anyone wants to know :roll:
Last edited by Falafel on Wed Mar 27, 2019 1:14 pm, edited 1 time in total.
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Re: Getting rid of a tenant not paying rent

Unread post by Jack Welles » Wed Mar 27, 2019 1:12 pm

C Africa wrote:
Wed Mar 27, 2019 12:14 pm
Jack Welles wrote:
Wed Mar 27, 2019 11:21 am
Oh dear! Oh dear! Oh dear! I'm out. The REAL lawyers on Avcom have taken over :lol:
Ok Jack so critique me. So what's wrong? C -NOTE POSTS WORDING REARRANGED FOR CONVENIENCE - NO WORDING CHANGED
:D Debate accepted as long as it stays objective and impersonal - if that changes I'm out :D - hope that's okay?
1. You cancel the contract in terms of the provisions in the rental agreement which allows you to cancel based on non-payment.
Agreed BUT only if the wording in the contract allows for that and it's done in the way provided for in the lease.
2. Following this procedure, the person occupying your property is now an illegal occupant and there is NO CONTRACT for him to rely on.
It's simplistic to suggest that he has no contract to rely on. There may be terms in the now-cancelled contract that apply to a cancelled scenario. One would have to look at the exact wording to know. The relevant legislation also implies (ie, it's not necessary to have them written into the original contract) certain conditions that would (effectively) be carried on from the contract to the post-contract period. The law also dictates that certain types of provisions in leases are, in fact, invalid.
3. Yes that illegal occupant is protected from EVICTION by the law, but the law does NOT provide this person with ANY other rights in terms of claiming any specific level of service of accommodation.
See answer to 2 above. In addition to that the underlined portion is quite simply wrong. The tenant has many rights and bear in mind that you have to differentiate between a legal tenant that becomes illegal and a squatter. The law deals with the two scenarios differently.
4. So now you are perfectly within your rights to make life as difficult for the person as you can (except denying him access to the property by locking the doors or something foolish).
No, this is simply not correct. Until you have a court order saying otherwise the landlord is not allowed to do anything to disturb, in any way, the peaceful occupation of the property by the tenant. In fact the tenant could get a spoliation order against the landlord. If they go to one of the legal aid clinics etc then money for their lawyers would be no object but would cost the landlord a few bob.

NOTE: 1) we are talking about residential property here and not commercial which has different rules.
2) My responses are pretty simplistic but largely correct. Anything more legalistic would be inappropriate for a social media platform.
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Re: Getting rid of a tenant not paying rent

Unread post by Fransw » Wed Mar 27, 2019 1:15 pm

Falafel wrote:
Wed Mar 27, 2019 1:09 pm
Fransw wrote:
Wed Mar 27, 2019 1:01 pm
Falafel wrote:
Wed Mar 27, 2019 11:36 am
Fact is you are on the back foot with a tenant, paying or not. That is why I sold my properties. Most of the advice above is untrue. What Jack said...

Beware the tenant who doesnt pay and even more the one who knows his/her rights. Aggression and unilateral moving in might work for a tenant who doesnt know what their rights are, but you might end up opening a can of worms if someone is aware of their rights and a few months rent is minor compared to the damage you may do to yourself.
:? What "damage"? And what can of worms are you talking about!...
My understanding is along the lines of (from a website):

Landlord serves notice to the Tenant to rectify the breach.
If no rectification occurs, the Landlord can terminate the lease contract.
Give notice to the offending Tenant that the Landlord intends to evict the Tenant through the courts.
Apply to court to have a “Tenant eviction order” issued to the Tenant.
The court issues the “Tenant eviction order” 14 days before the court hearing to the Tenant and the municipality that has jurisdiction in the area.
Court hearing occurs where Tenants just need to prove that they have a valid defense.
If there is a valid defense, then a trial date is set otherwise if there is no valid defense, a “warrant of eviction” is issued to the sheriff giving authorisation for the sheriff to remove the Tenant’s possessions off the premises.
A trial begins or the court sheriff removes the Tenant’s possessions off the premises

If not done correctly tenant can apply for “spoliation”, which entitles the tenant to approach the court to give him/her the leased premises back and to order the landlord to pay the tenant’s legal fees.

Go figure....
Less risk in the bundu justice way IMO!

Anyway, not going to do either with this tenant. Giving her another chance...
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Re: Getting rid of a tenant not paying rent

Unread post by Jack Welles » Wed Mar 27, 2019 1:21 pm

To add to Falafel's post on procedure.

Please note that it's not necessarily a done deal going to court to get an eviction order. Just two of the most onerous complexities:

1) the court also has to take into consideration the health and age of the tenants in occupation, eg, sick people, minor children and elderly etc, and the negative effect eviction may have on them.

2) the local municipality has to be involved to provide the evicted with alternate (acceptable) accommodation. If there is none the process will be suspended until that is organised.

Caveat again: this is a very simplistic rendition of the law just to give you an idea of what's involved.

As an aside: all of this is why when people ask me about residential property as an investment I always suggest that at the very least they carry specific insurance (which is available at a reasonable cost) against getting rid of bad tenants and increase the expected rental accordingly to cover that additional cost.
Last edited by Jack Welles on Wed Mar 27, 2019 1:25 pm, edited 1 time in total.
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Re: Getting rid of a tenant not paying rent

Unread post by Falafel » Wed Mar 27, 2019 1:23 pm

Jack Welles wrote:
Wed Mar 27, 2019 1:21 pm
To add to Falafel's post on procedure.

Please note that it's not necessarily a done deal going to court to get an eviction order. Just two of the most onerous complexities:

1) the court also has to take into consideration thehealth and age of the tenants in occupation, eg, sick people, minor children and elderly etc, and the negative effect eviction may have on them.

2) the local municipality has to be involved to provide the evicted with alternate (acceptable) accommodation. If there is none the process will be suspended until that is organised.

Caveat again: this is a very simplistic rendition of the law just to give you an idea of what's involved.
Which I guess makes owning and renting out a retirement property all the more complex right :?:
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Re: Getting rid of a tenant not paying rent

Unread post by Falafel » Wed Mar 27, 2019 1:25 pm

Fransw wrote:
Wed Mar 27, 2019 1:15 pm
Falafel wrote:
Wed Mar 27, 2019 1:09 pm
Fransw wrote:
Wed Mar 27, 2019 1:01 pm


:? What "damage"? And what can of worms are you talking about!...
My understanding is along the lines of (from a website):

Landlord serves notice to the Tenant to rectify the breach.
If no rectification occurs, the Landlord can terminate the lease contract.
Give notice to the offending Tenant that the Landlord intends to evict the Tenant through the courts.
Apply to court to have a “Tenant eviction order” issued to the Tenant.
The court issues the “Tenant eviction order” 14 days before the court hearing to the Tenant and the municipality that has jurisdiction in the area.
Court hearing occurs where Tenants just need to prove that they have a valid defense.
If there is a valid defense, then a trial date is set otherwise if there is no valid defense, a “warrant of eviction” is issued to the sheriff giving authorisation for the sheriff to remove the Tenant’s possessions off the premises.
A trial begins or the court sheriff removes the Tenant’s possessions off the premises

If not done correctly tenant can apply for “spoliation”, which entitles the tenant to approach the court to give him/her the leased premises back and to order the landlord to pay the tenant’s legal fees.

Go figure....
Less risk in the bundu justice way IMO!

Anyway, not going to do either with this tenant. Giving her another chance...
Best would be to maybe arrange for her to rent an acquaintances property... find her alternative accommodation and then the problem is his :twisted:
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Re: Getting rid of a tenant not paying rent

Unread post by Jack Welles » Wed Mar 27, 2019 1:26 pm

Falafel wrote:
Wed Mar 27, 2019 1:23 pm
Jack Welles wrote:
Wed Mar 27, 2019 1:21 pm
To add to Falafel's post on procedure.
Please note that it's not necessarily a done deal going to court to get an eviction order. Just two of the most onerous complexities:
1) the court also has to take into consideration thehealth and age of the tenants in occupation, eg, sick people, minor children and elderly etc, and the negative effect eviction may have on them.
2) the local municipality has to be involved to provide the evicted with alternate (acceptable) accommodation. If there is none the process will be suspended until that is organised.
Caveat again: this is a very simplistic rendition of the law just to give you an idea of what's involved.
Which I guess makes owning and renting out a retirement property all the more complex right :?:
Yes.
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Re: Getting rid of a tenant not paying rent

Unread post by Whirly » Wed Mar 27, 2019 1:27 pm

You are all just re-affirming why I will never rent out residential property. I will end up in jail! :roll: :evil:

I heard somewhere a long time ago, and might not remember correctly that the laws that protect tenants were originally created to protect farm workers from getting thrown off farms where they have lived all their lives. Now it is being applied to everyone.

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Re: Getting rid of a tenant not paying rent

Unread post by C Africa » Wed Mar 27, 2019 1:59 pm

Thanks Jack,

But I fail to understand how a person can institute a spoliation action if there is nothing being spoliated (i.e. the contract no longer exists).

So the way I understand what you are saying is I can institute a spoliation action because my illegal occupation is being spoliated?

Doesn't make sense to me.


C
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Re: Getting rid of a tenant not paying rent

Unread post by Jack Welles » Wed Mar 27, 2019 2:02 pm

Whirly wrote:
Wed Mar 27, 2019 1:27 pm
You are all just re-affirming why I will never rent out residential property. I will end up in jail! :roll: :evil:
I heard somewhere a long time ago, and might not remember correctly that the laws that protect tenants were originally created to protect farm workers from getting thrown off farms where they have lived all their lives. Now it is being applied to everyone. Whirly.
I might be wrong, but I don't think that's correct. The PIE Act applies to residential property, while the ESTA Act applies to farm worker situations. The two acts were "pretty much" thought up at the same time AFAIK.
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Re: Getting rid of a tenant not paying rent

Unread post by C Africa » Wed Mar 27, 2019 2:04 pm

C Africa wrote:
Wed Mar 27, 2019 1:59 pm
Thanks Jack,

But I fail to understand how a person can institute a spoliation action if there is nothing being spoliated (i.e. the contract no longer exists).

So the way I understand what you are saying is I can institute a spoliation action because my illegal occupation is being spoliated?

Doesn't make sense to me.


C
Edit: I.e. when you land up in front of the magistrate and the occupant claims his "peaceful occupation is being spoliated" and the magistrate is told that this person refuses to pay his rent, will the magistrate have much sympathy for him?
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Re: Getting rid of a tenant not paying rent

Unread post by Jack Welles » Wed Mar 27, 2019 2:07 pm

C Africa wrote:
Wed Mar 27, 2019 1:59 pm
But I fail to understand how a person can institute a spoliation action if there is nothing being spoliated (i.e. the contract no longer exists).
So the way I understand what you are saying is I can institute a spoliation action because my illegal occupation is being spoliated? C
That's because a spoliation order actually has nothing to do with legality/illegality of situations.

It's basically a provision (going back to Roman times or maybe just Roman-Ducth, not sure, but way back then anyway - so definitely not new in SA) to stop people taking the law into their own hands. The spoliation order says that the people must be left undisturbed until the court has had a chance to adjudicate the matter at hand.
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Re: Getting rid of a tenant not paying rent

Unread post by Jack Welles » Wed Mar 27, 2019 2:11 pm

C Africa wrote:
Wed Mar 27, 2019 2:04 pm
C Africa wrote:
Wed Mar 27, 2019 1:59 pm
Thanks Jack,
But I fail to understand how a person can institute a spoliation action if there is nothing being spoliated (i.e. the contract no longer exists).
So the way I understand what you are saying is I can institute a spoliation action because my illegal occupation is being spoliated?
Doesn't make sense to me. C
Edit: I.e. when you land up in front of the magistrate and the occupant claims his "peaceful occupation is being spoliated" and the magistrate is told that this person refuses to pay his rent, will the magistrate have much sympathy for him?
If the Mag/Judge is doing his job properly he will avoid having "feelings" about the people before him and consider only the facts (as proven) and the (applicable) law.

In this case it would be - is/was the tenant in possession - yes or no?

If "yes" then ask - did someone try and disturb/get him out/try to get him out without a court order - yes or no?

If answer is "yes" then spoliation order granted.

As an aside: just in case someone misunderstands - I'm merely trying to explain the law as I interpret it - none of this means that I either approve or disapprove of the relevant law :D
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