A landlord has asked the Property Poser panel for assistance in the eviction of a tenant who refuses to leave his property.
The reader gave his tenant notice of termination of lease and advised him to vacate the rented property on a specific date.
The tenant then approached the Rental Housing Tribunal complaining that the landlord intended to evict him unfairly. The tribunal found in favour of the landlord, agreeing that the reasons for the termination of the lease were fair in the circumstances.
This notwithstanding, the tenant continued to refuse to vacate the property, citing the Extension of Security of Tenure Act as his defence.
The reader has investigated the potential consequences of pursuing an eviction and mentions that he has been advised that, if a court upholds the tenant’s position under the aforementioned statute, he may be unsuccessful and liable for the costs of pursuing the eviction.
A complicating factor is that the tenant has continued to pay the monthly rental despite the landlord advising that the monies paid should not be considered as rental as there is no lease in place. The reader is holding these monies separately and intends to return them to the tenant.
He explains that the tenant merely ignores him and continues to remain in occupation, even conducting a business from the property. The landlord has now asked whether the panel has any useful advice for him.
The first aspect to consider is the reader’s position on the continued monthly rental paid by the tenant, says Schalk van der Merwe from Rawson Properties in Somerset West, Cape Town.
“The landlord’s insistence on returning the rental isn’t really justified – the property is being occupied and the landlord is out of pocket by not being able to rent the property out in the usual manner.”
Van der Merwe says the payment could be considered as rental in a month-to-month lease scenario and the reader could feel quite justified in retaining the payments.
“Despite our reader telling us that he has evicted the tenant, it would appear that the eviction stems solely from him giving his tenant notice of termination and eviction.”
This notion is further supported by the reader’s concern that his pursuit of the eviction might be countered by the tenant’s use of the Extension of Security of Tenure Act, says Van der Merwe.
“Unfortunately for the reader, the landlord’s mechanism to evict a tenant does not stem only from the lease, or the termination thereof.”
According to Grant Hill of Miller Bosman Le Roux Attorneys in Somerset West, the Rental Housing Act sets out the fundamental principle in that “the landlord’s rights against the tenant include his or her right to – on termination of a lease – repossess rental housing property having first obtained an order of court”.
Hill says the eviction process generally follows an established methodology as to the manner in which the process is started and, if necessary, the allegations required to give the court sufficient information to make a determination.
“In this case, the applicable statute is actually the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, the so-called ‘Pie Act’.”
The reader has given little background as to the status of the tenant and, on the face of it, the tenant is not destitute, because he is able to conduct a business and presumably earn money, says Hill.
“His further circumstances are not disclosed but it would seem that the landlord would be in a fair position to proceed in the correct manner with eviction, as the tenant would almost certainly be in a position to secure alternative accommodation.”
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