PUBLISHED 31 JAN 2010
The frequently-heard complaint that some of
our laws make it harder to collect rentals is by and large justified,
says Grant Gunston, senior partner of Grant Gunston Attorneys – and, he
adds, this has become increasingly apparent with the recession that we
have been going through.
“In our practice’s rental and levy collection department,” he says, “we
now have some 500 debtors. This is a two- or threefold increase on the
numbers from early 2008.”
Particularly worrying, says Gunston, is that the number of evictions
now being applied for has increased by roughly the same factor.
Grethe Loof, head of the firm's rent and levy collections department,
says that many landlords, especially those in the buy-to-rent market,
find it frustrating that, although the law does offer them protection
from those who breach their lease agreements, the legal process can be
time consuming and costly, particularly if the landlord has to fund
bond repayments on his own for three or more months.
“The whole cancellation/eviction process will usually take about three
months,” she says, "beginning with the tenant defaulting on the lease
agreement by non-payment, late payment or in some other way. The
landlord then has the right to cancel the lease forthwith except in
those cases where the lease specifies that a written demand has first
to be seen. Usually the landlord can cancel immediately but sometimes
he will be obliged to give the tenant a further seven days to find the
money."
Once the lease is cancelled, it is possible that the tenant will not
leave and an eviction order has to be applied for. The PIE Act (the
Prevention of Illegal Evictions Act) stipulates that 30 days' notice
must be given where there is a lease agreement on a month-to-month
basis. Having cancelled the lease, the landlord can apply for an
eviction by means of an ex parte application signed by the Magistrate
in his chambers, and at this point a date will be set for the tenant to
appear in court. The signed application will be served on the tenant by
the sheriff 14 days prior to the court date and only on that date can
eviction be ordered by the Magistrate.
Many landlords, says Gunston, are not aware that this application must
be brought within three months from cancellation of the lease
agreement. If this is not done, the PIE Act places certain
responsibilities on the owner before eviction can take place (for
example, proving that the tenant has alternative accommodation).
If the tenant does appear in court, his circumstances will be enquired
into and in general he is given at least 30 days before the eviction
comes into effect. If he is still occupying the property after the
lapse of the time stipulated by the court, the sheriff will be
authorised by the court to evict him. This can even involve placing his
goods and furniture on the street or in the sheriff's store as well as
replacing all the locks on the property to prevent his returning to it.
However this drastic eviction process, notes Loof, occurs only in a
relatively few cases as most tenants will move to catch up on arrear
payments or do a deal with the landlord’s lawyer once legal proceedings
against them start.
“Meanwhile the landlord does have a lien on all goods in the tenant’s
home and can get the sheriff to attach some or all of these goods as
soon as a summons or a seven day letter of demand (in terms of the
Section 32 of the Magistrates Act) have been issued. After this the
tenant is not allowed to remove any goods. Once goods are attached, the
tenant will often “get the message” and will find the rent due or begin
negotiations to put matters right. This is a robust measure but
regrettably it is sometimes necessary.”
* For further information contact Grant Gunston on 021 702 7763 or email grant@grantgunston.co.za.
Source: Property Trader
|