02 October 2024
As a landlord, dealing with tenants who don’t pay rent or violate the terms of their lease can be frustrating. However, it’s important to understand that in South Africa, you cannot lock a tenant out of your property without following the proper legal steps. Doing so without a court order can get you into serious trouble.
Here’s what you need to know and the correct procedures to follow when handling non-compliant tenants:
1. Don’t Lock Them Out—Communicate First
It might be tempting to change the locks or shut off utilities when a tenant is behind on rent or causing issues, but this is illegal. The first step should always be clear communication. Try to resolve the issue directly with your tenant by discussing payment or other problems.
If things don’t improve, you can send a Breach of Lease Agreement letter, outlining the breach of the lease (such as non-payment) and giving the tenant a reasonable amount of time to resolve the issue—which is 20 business days for a Natural person or 7 days for a Juristic party.
2. No Lockouts Without a Court Order
Under South African law you must have a court order to legally evict a tenant or deny them access to the property.
If you lock a tenant out without following this process, they can report you to the authorities for illegal eviction. In most cases, the police will help the tenant regain access, and you could face legal penalties, including fines or claims for damages.
3. Follow the Legal Eviction Process
If a tenant refuses to pay rent or breaches other terms of the lease, you’ll need to follow the formal eviction process:
- Serve a Notice of Eviction: After issuing a Breach of Lease Agreement letter for the tenant to remedy the breach (and they fail to do so), the next step is to serve an official notice informing them that you will be taking legal action.
- Apply for an Eviction Order: You’ll need to go to court and apply for an eviction order. The court will look at all the details—such as whether the tenant was given enough notice and time to rectify the issue.
- Eviction Hearing: The court will hold a hearing where both sides can present their case. If the court grants the eviction order, the tenant will be given a specific amount of time to vacate the property.
Once the eviction order is granted, only then can a sheriff of the court physically remove the tenant from the property if they still refuse to leave.
4. Avoid Costly Mistakes
Locking a tenant out without a court order, or cutting off essential services like water or electricity, can backfire:
- Spoliation Orders: If you lock a tenant out, they can apply for a spoliation order, which will force you to give them access again—regardless of the reason for the lockout. The court will restore their right to occupy the property, even if they owe rent, until the eviction process is completed.
- Rental Housing Tribunal Complaints: Tenants can file a complaint with the Rental Housing Tribunal, which will investigate the issue. If found guilty of an illegal lockout, you could face fines or orders to compensate the tenant for any losses they suffered.
5. Legal Advice is Key
If you’re unsure of your legal standing or how to proceed with an eviction, it’s a good idea to consult with a lawyer. Eviction cases can be complex, and taking the wrong steps can lead to delays, unnecessary costs, and legal repercussions.
The Bottom Line for Landlords
Dealing with non-paying or problematic tenants can be stressful, but taking matters into your own hands with illegal lockouts will only cause more problems. Always follow the legal eviction process to avoid fines, penalties, or lengthy disputes with tenants. If you’re ever unsure about the next steps, legal assistance is your best option to ensure the process is handled correctly.
