When faced with a non-paying tenant, it should be highlighted that a landlord must never cut-off utilities that are connected to the property
Any landlord who lets out a residential or commercial property must deal with minor issues, however, at times they must face more serious problems.
Within the latter category lies the situation where the tenant either fails to pay the due rent or continues to live in the property when the term of the lease has expired. Additionally there can arise the situation that a person takes occupation of the property, not having any legal right to do so, as is the case with a squatter.
Dealing with such difficult situations can leave the landlord feeling powerless and confused as to how to act.
What can a landlord do in such circumstances?
In the first place, it should be highlighted that what a landlord must NOT do is to cut off the utility supplies, change the locks or sell the property, without informing the tenant; such actions could create bigger costs and even potentially criminal liability for coercion. It is much more advisable to try to negotiate an out of court agreement with the defaulting tenant/squatter, though if such efforts are not successful, without doubt the most effective remaining option is to initiate eviction proceedings.
What do eviction proceedings consist of?
Eviction proceedings are a summary process, the end result of which is that the owner or landlord may recover vacant possession of the property. Depending on the circumstances which we are facing, we opt for with either eviction proceedings for failure to pay the rent or similar, or eviction proceedings for termination of contract or for squatting.
In proceedings for failure to pay the rent, it is possible to demand solely the return of vacant possession of the property or to claim, in addition, those amounts outstanding in terms of rent and other bills. In the statement of claim submitted to Court, the allegation is made that the tenant has not complied with the obligation to pay the due rent and on this basis a request is being made to return possession to the owner/landlord, with an optional demand for any unpaid rent/bills that are due.
Withdrawal of the proceedings
Within the statement of claim it is necessary to indicate whether the ‘enervation’ or withdrawal of the action may be appropriate. The ‘enervation’ of the proceedings occurs when, upon receiving notification of the landlord’s intentions to seek eviction, the tenant makes full payment of any outstanding monies due when required to do so by the judge. In that case the tenant may continue with possession of the property under the terms of the lease. it should be pointed out that ‘enervation’ of the proceedings may only be applied once.
If the tenant does not oppose the proceedings with a period of ten days from the petition by the landlord, a date is set for the eviction and the tenant is ordered to make payment of the outstanding monies claimed, without the need for a hearing.
Equally, it is possible to initiate eviction proceedings on the basis that the lease has terminated or against squatters ie where the property is occupied by a person or persons who are not authorised to do so. In these circumstances, once the demand for eviction is presented and processed, the person(s) occupying the property have ten days to respond to the eviction demand, and a hearing shall only be convened when it is requested by either one or other of the parties. On the other hand, if neither party requests the hearing, and the judge dealing with the matter does not consider it necessary either, summary judgment is handed down.
We would recommend, in those cases where the option exists to pursue the matter via the criminal or the civil proceedings route, that landlords should opt for civil proceedings, which are usually faster and less expensive.