How to get rid of a squatting tenant

The stir caused by our recent article about a property owner’s fight to remove a tenant who refuses to pay rent or leave, proves that hijacking of properties is all too common in South Africa.

Several other readers shared their own tales of despair. Some offered advice on how to get rid of these unwanted house guests, though much of it was more entertaining than practical.

One reader suggested that the owner should rent the house to the local armed response company and, “sit back and watch the fun.”

Another said that inviting a few homeless people to move in helped: “The problem tenants moved out the next day.” However, he didn’t mention how to get rid of the new “tenants” afterwards.

That said, there can be severe consequences when property owners take aggressive and impulsive action after a contractual relationship sours.

Ben Groot, an attorney with GVS Law and expert in rental contracts and disputes, says landlords facing such problems need to follow the correct legal steps and must be careful not to jeopardise their case by taking illegal action – such as interfering with the defaulting tenant’s occupation, known as spoliation.

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Spoliation is deemed unlawful

Spoliation occurs when someone is deprived of possessions or services (access to water or electricity) without due process, and it is deemed unlawful. The law regarding spoliation does not take into account whether the person is the rightful owner of the goods or services being withheld, but only that he or she had a right to them at some point.

It seems very unfair, but the law sides with the tenant-in-default and aggressive actions by a landlord – such as removing the roof while the tenant is out shopping – will not help your case.

“The court, understandably, does not take it kindly when people take the law into their own hands. Just imagine if the shoe were on the other foot and you were a tenant dealing with an unscrupulous landlord. Say you diligently pay your rent, and the landlord unilaterally adds charges to your account, and then comes and changes locks or disconnects electricity ‘because you are in arrears’.

“If everyone were to take the law into their own hands, there would be chaos in the country. Therefore, in order to interfere with the tenant’s occupation of the property, such as by disconnecting utilities or changing the locks, a landlord has to obtain a court order first.

“In the absence of a court order, any interference constitutes spoliation, which entitles the tenant to approach the court on an urgent basis to have the occupation restored. The aim of these proceedings is to guard against self-help and the court does not look into the lawfulness of the tenant’s occupation, but merely considers whether the occupation was disturbed.

“This may seem unfair, but it makes a lot of sense. Spoliation is a remedy that came from Roman-Dutch law; it is not a recent invention,” says Groot.

All the aggressive actions suggested by readers may, in fact, hinder rather than help a landlord.

“What many frustrated landlords don’t realise is that taking the law into their own hands will likely backfire.

“Changing the locks, cutting electricity, flooding the property with new occupants, or trying to remove furniture may feel like justified retaliation. Legally, it is a trap,” says Groot.

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Remedies

Despite perceptions that the law favours tenants, Groot insists that landlords have strong tools at their disposal, provided they know how to use them.

His first piece of advice for landlords with such problems is that they have to fight two separate legal battles. “The first is to evict the non-paying tenant and the second is to recover the arrears.

“Starting a legal process to collects arrears also puts pressure on the tenants to pay up or vacate the property, because the process to collect debt makes provision to attach assets.

“Initiate legal proceedings once the rent is two months overdue. If the arrears build up too much, the chances of recovering the money drop significantly,” he says.

The most powerful tool available to landlords, says Groot, is the landlord’s hypothec. It allows the landlord to use the tenant’s movable assets on the leased property as security for unpaid rent.

There are two main legal avenues for enforcing this right:

• Obtain a rent interdict summons from a magistrate. Once served by the sheriff, all moveables belonging to the tenant are automatically attached. These items cannot be removed until rent is paid. If the tenant removes them, they commit contempt of court, punishable by up to six months in jail.
• Obtain a Section 32 Attachment. If the rent is overdue for more than seven days, or the landlord believes the tenant may flee, the court can issue an order, without the tenant being notified, for the immediate attachment and removal of moveable assets. The sheriff arrives unannounced and begins loading the goods.

“In some cases, courts may grant urgent orders to disconnect utilities like electricity where arrears are significant,” says Groot.

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Different forums

The forum the landlord chooses matters. For commercial leases or high-value residential properties, arbitration may be faster and more effective than court proceedings. For lower-value claims, the Small Claims Court is available if the monthly amount due is less than R20 000 and the landlord is a natural person.

Groot recommends a structured, written approach from the start:

• Day one after due date: Send a WhatsApp message or email notifying the tenant that the rent is late and must be paid.
• Day seven: If there’s no response, follow up in writing.
• Day 14: Issue a formal letter of demand through an attorney or another formal legal channel.
• A few days before month-end: Remind the tenant that the new month’s rent is due and that legal steps are imminent.
• Day two of the second month: Initiate legal proceedings to recover arrears and seek cancellation of the lease.

Groot says it is usually better to cancel the lease once the legal process begins, particularly in the case of residential properties.

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Avoid poor vetting or no written lease

Groot offers a few tips to prevent problems: Screen potential tenants thoroughly by using credit checks and/or get references; ask for a deposit (ideally two months’ rent); never hand over keys or access cards before the lease is signed and the first month’s rent and deposit have been paid; and ensure that the lease is comprehensive and legally sound.

Groot says that buy-to-let is still a worthwhile investment alternative.

“Yes, it’s harder to evict residential tenants and there are delays. However, if you manage the risk properly, understand the law and act early, it usually remains profitable. There is, however, no guarantee that you will not experience any problems, just as with any other investment.

“Many investors avoid property unnecessarily, simply because of bad experiences or misconceptions about how powerless landlords are. The tools exist – you just need to use them correctly.

“The law provides for both the protection of tenants and the enforcement of landlord rights. The key is preparation, documentation and timing.

“If eviction becomes necessary, don’t wait until you’re desperate. Seek legal advice, know your rights and make sure your lease is more than just a handshake,” says Groot.

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Readers’ perspectives

Many readers sympathised with the owner who originally voiced her complaint about the tenant refusing to pay. “It’s sad that property owners are not protected by any institution. High rates, no government protection, yet we provide stability by investing in property,” says one.

Another wrote: “I am a pastor at a church. An aged single lady in our church (70 plus years) went for a back operation that had some complications that required that she go into an assisted care village for a period. She owns a town house that she thought she would rent out which would cover some of the costs at the assisted living place. The tenants have not paid for seven months. They won’t let her son in and this poor old woman needs to draw down her retirement savings. And the law shockingly sides with the tenants.”

A property owner in Cape Town relates an even worse experience. “I bought an investment  property in Cape Town. I got a tenant (through an agent) who has only paid rent for the first month. He has been using my property as an Airbnb for his benefit, while I am stuck with the mortgage, levies and rates.

“The tenant is a Congolese man. In the due diligence process everything was in order, including a letter from an accounting firm to verify his bank statements. Now that this has happened, I see that his number is linked to various businesses including teaching English, providing visas for non-South Africans and Airnb,” he wrote in an email.

“Following my application to the Rental Housing Tribunal, he also sent an application under a different name to the name in the lease. So, the person laying a complaint against me is not even my tenant, and the tribunal did not even acknowledge that. He is claiming that my furniture is his furniture and he has listed every excuse under the sun to pardon him from paying rent.

“The Rental Housing Tribunal has not been helpful at all. The 1st of August is coming and I don’t know how I will pay my mortgage bond,” he says.

“Soon I won’t be able to pay the complex levies, the City of Cape Town or Absa. It’s not just me that lose out. It is an entire ecosystem that will collapse – all because we are protecting criminals.”

This article was republished from Moneyweb. Read the original here.