It has become widespread that owners of property, which is leased to tenants and their appointed leasing agents, find it difficult to obtain redress with regards to due payable rental money.
The money is used as a reimbursement for repairs of damage to property by a tenant or the eventual eviction of tenants who are in breach of the lease agreement. Reasons that landlords experience such difficulties are because legislative procedures are not properly followed.
According to a Fitzanne Estates property agent, collecting arrear rent and obtaining an eviction order against any defaulting tenant could be a complex and disheartening process. He, however, noted that should a tenant breach the terms of the lease agreement the process of obtaining redress should be as painless as possible, if done correctly.
The lease agreement is vital, and it’s important to ensure that the person signing the agreement as the lessee is the person who will be responsible for payment of the rent. If someone else will occupy the premises is should be disclosed as such.
The lease agreement should contain clauses dealing with payment of rent, duration, occupation, guests, overcrowding, breach of the agreement, legal costs, and the delivery of notices in terms of the lease agreement and legal proceedings. A well-written lease agreement complies with the provisions of the Consumer Protection Act, Act 68 of 2008 and the Rental Housing Act, Act 50 of 1999. Should the agreement not comply with the provisions of these Acts, certain clauses in the agreement or the entire agreement could be declared void by the Court.
Non-compliance with legislative provisions could result in a long and costly Court process, as tenants predominantly raise technical defences with specific reference to the agreement and legislative compliance.
It has become increasingly hard to find good tenants, hence investigating the tenant’s history, and to check previous lease references is essential. Tenants who cause damage to the property have a tendency to repeat the same behaviour.
The property agent also added, “It’s also vital to follow up with owners of previous properties rented by the prospective tenant with regard to payment of rent and maintenance of the property. Proper inspections of the premises must be conducted at commencement and termination of the Lease with the tenant in terms of the provisions of the Rental Housing Act. Failing to conduct these inspections or failing to note any damage to the property may result therein that a claim for damages against the tenant could fail. Should a tenant be in breach of the agreement, notice of such breach should be delivered as a matter of urgency. The notice of breach should provide the tenant with sufficient notice to remedy the breach.”
The Consumer Protection Act provides that a lessor may cancel an agreement, should a tenant not remedy a breach within 20 business days after being notified of such breach. Should the agreement contain a clause in which the tenant should remedy any breach within a period less than the 20 business days, as provided in terms of the Consumer Protections Act.
It would, therefore, be prudent to include both the notice period, in terms of the Consumer Protection Act, and any other notice period provided for, in terms of the agreement, and warn the tenant that should he fail to remedy the breach within the former notice period the agreement will be cancelled. Should he fail to remedy the breach within the latter notice period, legal action can be taken to cure such breach.
A lessor should ensure that after the expiry of the 20 business days, as mentioned above, a notice of cancellation is delivered to the tenant. Once the notice of cancellation has been delivered correctly the agreement will be cancelled and the tenant and all other persons occupying the premises through him will be unlawful occupants of the premises in terms of the Prevention of Illegal Eviction and Occupation of Land Act, Act 19 of 1998.
According to Lourens Grobler, “It is important to note that the key to the successful collection of arrear rent and the eviction of unlawful occupants is swift action and legislative compliance. As a lessor, you should ensure that the correct steps are taken decisively and without delay. Proper groundwork, i.e. the lease agreement, inspections, references and the correct notices will close the door on technical defences and ensure the cost and time efficiency of any legal action to be taken.”
