This week the Property Poser panel clarifies a situation in which a reader is being threatened with early eviction due to outstanding rental payments.
The tenant is two months in arrears but has offered to repay the money in instalments.
However, the landlord is not satisfied with his offer and has demanded, via the rental agency, that the reader vacate the property within seven days.
He has also threatened to lock the tenant out of the property and chain up the gates. In addition, the landlord demands a written undertaking that the arrear rental will be paid.
What is clear is that the tenant is in breach of the lease agreement between himself and the landlord, says Charlotte Vermaak from Chas Everitt in Port Elizabeth.
“Depending on the exact terms of the agreement, the landlord would generally be able to put the tenant on terms to remedy the breach, failing which he can claim cancellation of the agreement and take steps to evict him, if the tenant does not vacate the premises on the termination date.”
Vermaak says these rights are confirmed in the Rental Housing Act.
“Section 4 sets out the landlord’s rights regarding prompt payment of rental and termination of lease ‘on grounds that do not constitute an unfair practice and are specified in the lease’.”
The Consumer Protection Act may also have an impact on the steps that the landlord must take, if a fixed lease was concluded on or after 1 April last year, says Vermaak.
“In that case, the landlord would only be entitled to cancel the lease after giving the reader 20 working days’ notice to remedy a material breach and he still fails to comply.”
With regard to the tenant’s rights, the Rental Housing Act confirms that a reader may not be evicted without a court order, says Rian du Toit from DTS Attorneys in PE.
“Also, a landlord may not change the locks unless it is necessary due to wear and tear or other reasonable causes, and without having given reasonable notice to the tenant. Duplicate keys must be provided.”
Du Toit says this makes it clear that a landlord may not lock out a tenant – even one who is in arrears.
“Based on the unfair practice of the landlord, the tenant may approach the Rental Housing Tribunal to seek relief,” says Du Toit. “Alternatively, the tenant may seek legal assistance from an attorney.”
According to Du Toit, the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act may provide some guidance in this matter.
“The PIE Act, as it is commonly known, states that certain allegations must be made when requesting eviction and also prescribes the procedure to be followed when instituting eviction proceedings.”
The landlord has the remedy of obtaining an eviction order from the court, says Du Toit, but this process demands that proper notice be given of the proposed eviction.
“The relevant acts aim 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.”
Article source: http://mype.co.za/new/2012/03/rental-arrears-eviction-advice/