SA Landlords: What you can and can’t do

Rental property owners and landlords need to be aware of their obligations and rights in terms of legislation governing rentals in South Africa, specifically things that they may not do. Landlords and tenants have rights and responsibilities under the Rental Housing Act and Consumer Protection Act, and landlords cannot act arbitrarily, especially when dealing with tenant issues.

READ: How to prevent and resolve rental disputes

Rental agents from Seeff Southern Suburbs highlight a few important things for landlords to note:

Cut the electricity. Landlords may not cut off essential services, even if the tenant is behind on rent. Tenants have a right to these services. If rent is overdue, landlords must follow legal procedures. If it remains unpaid, they can take legal action and ultimately pursue an eviction order.

Increase the rent to cover costs. Rent increases must be in line with the provisions of the lease agreement, and be legally compliant. Landlords cannot increase rent unilaterally, even if they had incurred costs connected to property repairs or maintenance, if not related to the tenant.

Discriminate against tenants. All tenants must be treated fairly, current and potential and may not be discriminated against in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act. This includes race, gender, religion, disability and sexual orientation.

Break locks or enter the property at any time. Proper notice of inspections must be given to the tenant who must be accommodating. Landlords must respect the tenant’s rights, and may not enter without permission, except for emergencies or if the tenant is refusing entry so the landlord can show the property to prospective tenants or buyers.

Neglect to maintain the property. Landlords are obliged to keep rental properties in a good and habitable condition. This includes necessary repairs to maintain health and safety standards. If the landlord fails in its duties to maintain the property, or attend to emergency repairs not due to tenant neglect, the tenant can take legal action.

Lock a tenant out of the property or evict them unlawfully. Landlords must follow legal procedure, and cannot lock a tenant out of the rental property. Proper legal processes must be followed, and ultimately, if the tenant remains in breach, an eviction order can be obtained. Evictions must respect the rights and dignity of the tenant.

Cancel the lease before the end of the period without legal process. The lease cannot be cancelled arbitrarily even if selling the property. Unless provided for otherwise in the agreement, the landlord can only cancel the lease if there is a material breach and must follow legal procedure.

Seeff agents say that due to the legal complexities, the lease agreement has become vital to the tenancy and must preferably include clauses and provisions which protect the interests of the landlord.

READ: Landlords: A guide to finding the ideal rental candidates

Additional information: 

According to the Department of Human Settlements, a Rental Housing Tribunal has the authority to deal with disputes, complaints or problems between tenants and landlords in the rental housing dwellings:

- Non-payment of rentals
- Failure to refund the deposit
- Invasion of tenant’s privacy, including family members and visitors
- Unlawful seizure of tenant’s goods
- Discrimination by landlord against prospective tenants
- The changing of locks
- Lack of maintenance and repairs
- Illegal evictions
- Illegal lockout or illegal disconnection of services
- Damage to property
- Demolition and conversion
- Forced entry
- House rules
- Intimidation
- Issuing of receipts
- Municipal services
- Nuisance
- Overcrowding and health matters

In terms of section 13(13) of the Rental Housing Act 50 of 1999, a ruling of the Tribunal is deemed to be an order of a Magistrate's Court in terms of the Magistrate's Court Act, 1994.

Abrahams & Gross Candidate Attorney Phelokazi Tsengiwe and Litigation and Dispute Resolution Attorney Henno Bothma respond: 

The legal steps to evicting a non-paying client are governed by the Rental Housing Act 50 of 1999, the Prevention of Illegal Eviction and Unlawful Occupation of Land Act 19 of 1998, and the Consumer Protection Act 68 of 2008.

The Rental Housing Act serves as the cornerstone of landlord-tenant relationships in South Africa. This legislation outlines the rights and obligations of both parties, ensuring a fair and balanced approach.

The Prevention of Illegal Eviction and Unlawful Occupation of Land Act stipulates processes in evicting illegal occupants and prohibiting landlords from unlawfully evicting tenants.

As per the Rental Housing Act, landlords can only evict tenants for valid reasons, non-payment being one of them.

The following is a guide on what the Landlord is required to do:

1. Review the Lease Agreement: Ensure that the lease agreement specifies the terms related to rent payments and the consequences of non-payment. This is important for demonstrating that the tenant has breached the agreement.
2. Serve a Notice of Default: Before taking legal action, the landlord must serve the tenant with a notice of default, notifying the tenant of his breach. This notice should specify the outstanding amounts and provide a reasonable period (usually 20 business days according to the Consumer Protection Act) for the tenant to pay the arrears.
3. Cancel the Lease Agreement: If the tenant fails to pay the arrears, the landlord may cancel the lease and demand that the tenant vacate on a specific date. Courts usually expect the landlord to give the tenant one month’s notice to vacate.
4. File an Application at Court: If the tenant fails to pay after the notice of breach, the landlord can apply to Court for an eviction order. Unopposed the process takes roughly 4-6 months, so it is important for the landlord to act timeously.
5. Attend a Court Hearing: If the matter becomes opposed the parties will both need to file further affidavits, and legal practitioners on behalf of the parties must then argue the matter on a date determined by the Court.
6. Obtain an Eviction Order: If the Court finds in favour of the landlord, it will issue an eviction order specifying the date by which the tenant must vacate the property.
7. Enforce the Eviction Order: If the tenant does not vacate by the specified date, the landlord can request the sheriff of the court to enforce the eviction order. The sheriff will carry out the eviction according to the court's order.
8. Ensure Compliance with the Law: It is crucial for landlords to follow all legal procedures to avoid delays or legal complications. Consulting with an attorney can help ensure that all steps are properly executed and compliant with the relevant laws.

By adhering to these steps and laws, landlords can manage the eviction process for non-payment of rent in a lawful and orderly manner.

An aggrieved landlord has legal recourse and options to choose from. Our Litigation and Dispute Resolution attorneys at Abrahams & Gross have considerable experience with non-paying tenants, breached lease agreements, evictions and recovery of arrear rentals – please contact us to assist.

* Disclaimer: The articles on these web pages are provided for general information purposes only. Whilst care has been taken to ensure accuracy, the content provided is not intended to stand alone as legal advice. Always consult a suitably qualified attorney on any specific legal problem or matter.

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