Written for YourProperty
A reader has consulted the Property Poser expert on behalf of her son, who she believes has been wrongfully evicted from his rented premises.
The reader explains that her son has rented the same property for three years and was recently unable to pay his full rental at the beginning of the month.
The landlord allowed him a little grace until the 15th but the tenant was still unable to pay.
As the tenant has never been in arrears before, the landlord seems to have taken a few drastic measures in using the services of the SAPS to evict him.
His mother would like to know whether this is legal and whether he would be able to seek the return of his deposit.
A first aspect to consider would be the provisions of the lease agreement between the parties, says Sean Radue of Radue Attorneys in Port Elizabeth.
“The terms may provide for the manner in which the landlord is obliged to give notice of the tenant’s breach as well as the manner and time in which he is to remedy his breach.”
Should the tenant fail to remedy the breach, the agreement will usually provide certain remedies that may become available to the landlord.
“This may include the eviction of the tenant on cancellation of the lease agreement.”
Radue says the South African law has developed substantially over the last few years insofar as the eviction of tenants is concerned.
“The Rental Housing Act sets out the landlord’s rights regarding the prompt payment of rental and also of termination of the lease ‘on grounds that do not constitute an unfair practice and are specified in the lease’.”
The regulations to the Act confirm that a tenant must not be evicted without an order of court, he says.
“The evicted tenant may approach the Rental Housing Tribunal, based on the unfair practice of the landlord, to seek relief.”
A further statute of relevance is the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, says Radue.
“The so-called PIE Act provides that certain allegations must be made when requesting eviction and also prescribes the procedure to be followed when instituting eviction proceedings.”
Under the PIE Act, the landlord has the remedy of obtaining an eviction order from court, he says.
“This process in itself demands that proper notice be given to the tenant of the proposed eviction.”
Radue says the object of the Rental Housing Act, in this instance, and the PIE Act is to prevent parties from taking the law into their own hands and acting unfairly, even in a situation where the tenant has breached the rental agreement.
“This does lead one to question the alleged behaviour of the police in the so-called eviction of the tenant from the rental property, as this is contrary to the legislation and the intention thereof.”
He says the tenant’s rights must be observed during the process so as to allow for a fair procedure.
“The tenant could utilise the provisions of the Rental Housing Act to counter the entire eviction process as an unfair practice and, simultaneously, recover his deposit.”
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