Landlords are protected against non-paying tenants, but the legal process can be time consuming?

The frequently heard complaint that some of our laws make it hard to collect rentals is by and large justified, says Grant Gunston, senior partner of Grant Gunston Attorneys. And, he adds, this has become increasingly apparent with the recession that we have been going through.

"In our practice?s rental and levy collection department," he said, "we now have some 500 debtors. This is a two or three fold increase on the numbers from early 2008."

Evictions are increasing

Particularly worrying, said Gunston, is that the number of evictions now being applied for has increased by roughly the same factor.

Many landlords, especially those in the buy-to-rent market, said Grethe Loof, head of Gunston Attorneys? rent and levy collections, find it frustrating that, although the law does offer them protection from those who breach their lease agreements, the legal process can be time consuming and costly, particularly if the landlord has to fund these bond repayments on his own for three or more months.

"The whole cancellation/eviction process will usually take about three months," said Loof.

The right to cancel the lease

Loof added that once the tenant has defaulted on the lease agreement by non-payment, late payment or in some other way, the landlord has the right to cancel the lease forthwith except in those cases where the lease specifies that a written demand has first to be seen. Usually the landlord can cancel immediately, but sometimes he will be obliged to give the tenant a further seven days to find the money.

Once the lease is cancelled, it is possible that the tenant will not leave and an eviction order has to be applied for. The PIE Act (the Prevention of Illegal Evictions Act) stipulates that 30 days notice must be given where there is a lease agreement on a month-to-month basis. Having cancelled the lease, the landlord can apply for an eviction by means of an ex parte application, signed by the Magistrate in his chambers and at this point a date will be set for the tenant to appear in court. The signed application will be served on the tenant by the sheriff 14 days prior to the court date and only on that date can eviction be ordered by the Magistrate.

Many landlords, said Gunston, are not aware that this application must be brought within three months from cancellation of the lease agreement. If this is not done, the PIE Act places certain responsibilities on the owner before eviction can take place (for example, proving that the tenant has alternative accommodation).

Placing the tenant's goods on the street

If the tenant does appear in court his circumstances will be enquired into and in general he is given at least 30 days before the eviction comes into effect. If he is still occupying the property after the lapse of the time stipulated by the court, the sheriff will be authorised by the court to evict him. This can even involve placing his goods and furniture on the street or in the sheriff's store as well as replacing all the locks on the property to prevent his returning to it.

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