When your tenant won’t pay

Having an investment property can often be a lucrative way to grow your asset base but it is often not without its pitfalls. Here’s legal advice for when your tenant won’t pay the rent:

How to protect yourself and your property

Without a doubt – put the lease agreement in writing! You can either instruct an attorney or, if the terms are simple, you can purchase a pro-forma agreement from a stationer.

Diarise the date when the lease expires and diarise on your calendar to contact the tenant at least two months prior to expiration. This affords you time to ascertain from the tenant as to whether they wish to renew the lease or vacate the property.

In the event that the tenant wishes to remain in the property, draft and sign an addendum to the lease agreement providing for the increase in rental and any terms different to those in the original lease agreement.

Correspondence between you and your tenant, invoices for work to the premises, proof of payment of rental and the original lease should be filed together in case of any problems arising.

The law regarding residential rentals

South African law provides that one is not able to evict someone in occupation of their property without due process. This applies whether or not the occupier is in lawful occupation.

The Prevention of Illegal Evictions Act requires that a court order is required in order to serve eviction papers on the occupier of the property. Bringing an application of this nature can be complex and we suggest that you instruct an attorney practicing in residential evictions to assist you.

What happens if the tenant opposes the eviction?

In our law, both parties must be afforded an opportunity to be heard before a court of law. In the event that the tenant opposes the eviction, the eviction will have to be argued on the opposed roll, which can be a lengthy and often a relatively expensive process.

Why can’t I just change the locks?

Our law does not allow for the principle of ‘self help’. Simply changing the locks may seem like a good idea, except it is completely illegal. Doing such is referred to as a spoliation, which will entitle the tenant to approach the court and with a fair amount of ease, obtain a court order forcing you to place the tenant back in occupation of the property.

The lawfulness of their occupation is not relevant to the enquiry in a spoliation application!

What if they owe me arrear rental?

A summons must be issued and served, in which the sheriff is able to attach moveable items in the property to give security to your rental claim. This is a double edged sword as the tenant may then not vacate the property.

It is best to ensure that you thoroughly screen your prospective tenants by contacting previous rental references, confirming employment details, retain a copy of the tenants identity document and instruct an attorney to conduct a credit search (with the tenant’s written consent) on the prospective tenant.

These suggestions are in no way a guarantee and should you encounter a nightmare tenant who is in breach of the agreement, or should you require assistance with lease or other issues, contact an attorney practicing in this area of law to assist you.

About the author

Andrea Goldman is a Partner at Goldman Schultz Attorneys. For more information contact info@gslaw.co.za or www.gslaw.co.za