The scenario presented to our Property Poser panel of experts this week relates to a tenant who has not paid rental for some time.

Our reader, the landlord, has given him some breathing space, but has now put the tenant on terms and insisted that he pays at the end of the month.

The question he now asks is what happens if the tenant still does not pay. Can our reader demand that he moves out immediately because he is in breach of the lease agreement?

Charlotte Vermaak from Chas Everitt in Port Elizabeth says a lease agreement should contain a provision saying what constitutes a breach of contract.

“For example, if the tenant does not pay the rent on time and what the landlord’s rights would be in such a case. This may include cancelling the lease without further notice.”

Unfortunately we do not know whether a written lease exists between the parties, as such a contract could contain the procedure when giving notice to a tenant for non-payment, according to Vermaak.

“It is possible that the landlord and tenant agreed verbally on terms for termination of the lease, in which case these would apply.”

Vermaak says another common provision often contained in lease agreements provides that the party in breach has time to rectify the situation by, for example, paying the overdue rental.

“In such instance, the provisions of the breach clause must be followed before the lease may be cancelled. If the lease does not contain a cancellation clause, it is good practice to write a letter giving the tenant seven days to pay, failing which the lease may be cancelled.”

Once the lease has been cancelled, the question turns to how our reader can go about evicting the tenant, assuming the tenant does not leave voluntarily. The answer, says Vermaak, lies in the so-called PIE Act or, more formally, the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act of 1998.

Rian du Toit from Du Toit Strömbeck Attorneys in PE says in terms of the provisions of this act, no one may be evicted from a property without a court order. “Even if our reader turns to the Rental Housing Tribunal, he will not circumvent the requirements set out in the PIE Act.”

The impression is often gained, says Du Toit, that unlawful tenants are offered more protection than the landlord in terms of this act.

“Its provisions do not remove the landlord’s remedy of eviction. It simply provides for a procedure to be followed, giving notice to various parties of the intended eviction.”

A landlord wishing to evict an unlawful occupier has to institute action to initiate the procedure to evict, according to Du Toit. “A notice authorised by a magistrate must be served on the unlawful occupier as well as the municipality – at least 14 working days before the hearing in respect of the eviction.

“This obviously allows the tenant to possibly oppose the action. At a hearing the court will determine whether the landlord is entitled to evict the tenant.”

Du Toit says the PIE Act contains reference to issues to be considered by the court, including the rights and needs of children, the elderly and households headed by women.

“If the court does find that the landlord is entitled to an eviction order, it will assign a date upon which the unlawful occupier must vacate the premises. The landlord may call in the assistance of the sheriff to remove the occupiers.”

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