A tenancy agreement is, before anything else, a contract, says Cape Town attorney Simon Dippenaar.

The landlord and tenant are engaged in a contractual, business relationship, regardless of whatever else they may be in other areas of life.

To protect the asset the property represents, the landlord at some point may have to take action that is unpopular with the tenant.

Cancellation vs. eviction

It's important to understand the distinction between cancelling a lease and evicting a tenant, says Dippenaar. They are not one and the same thing.

A lease cancellation is the conclusion of a civil contract between two individuals, for a valid reason.

Eviction is a legal process that must be conducted via the courts and requires an attorney. A landlord cannot evict a tenant without going through due process of law.

The eviction process

Assuming there is a written lease agreement in place, a breach of the conditions of the lease might lead a landlord to want to cancel the lease.The breach might concern living habits, such as excessive noise, keeping pets without the requisite permission, or failing to maintain the property in a reasonable state. The most common cause of lease cancellation is rent arrears.

Of all these transgressions, failure to pay rent has the most severe economic consequences for the landlord, but may attract the most leniency, because the tenant may have lost their job or suffered some other financial misfortune beyond their control.

Because the law knows that a rented property is someone's home, it provides protection to tenants. Several pieces of legislation ensure that an unscrupulous landlord cannot put a tenant out on the street without warning.

The law is particularly sympathetic to vulnerable people, such as children, the elderly, disabled people, or woman-headed households.

Cancelling a lease

The landlord must give the tenant notice of the breach and a chance to rectify it. In the case of rent arrears an opportunity must be given to make good the rent due.

This is done by way of a warning in writing, giving the tenant a specified amount of time in which to remedy the breach. The time frame will be determined by the terms of the lease, or if not specified it will be 20 working days, in accordance with the law.

If there is no written lease, the landlord must give a full calendar month's notice. If the tenant pays up (and does not repeat this breach month after month), the matter is finished and harmony is restored. Remember that a calendar month's termination means from the beginning to the end of the same month. Therefore if it is the third of January and the landlord wishes to terminate the agreement, the termination would only apply at the end of the following month, i.e. the end of February, and not the end of January. This is so a full month can elapse and the termination takes effect at the end of a month.

However, if the breach is not remedied, the next step is a letter of cancellation served on the tenant by the landlord. In some cases the lease may have expired but the tenant still occupies the premises with the landlord's consent on a month-to-month basis.

This may happen if a tenant is looking to move house or waiting on a job offer that includes relocation. In this case the landlord must give the tenant one calendar month's written notice of cancellation.

Eviction 

With luck, the tenant vacates the property at the end of the notice period. If so, the landlord is free to find another tenant who can pay the rent.

However, should the tenant disregard the lease cancellation, the landlord may have no choice but to start the eviction process.

The landlord must apply to the court to have an eviction notice served by the sheriff on the tenant – who is now considered an unlawful occupier rather than a tenant.

A court date is set and a deadline given for filing an opposing affidavit if the unlawful occupier wants to oppose the eviction.

If the court is satisfied that the case for eviction is sound, the tenant or unlawful occupier will be given time to vacate the property.

Only if, despite this process, they fail to vacate the property within the specified period, will the sheriff will be authorised to remove them and their belongings from the property. The cost of this will be borne by the tenant.

The landlord may not change the locks, physically remove personal property, or behave in a threatening way toward the tenant, however recalcitrant the tenant may be.

Only the sheriff may take any physical action against the tenant. A landlord who takes matters into their own hands may find themselves facing serious consequences.

* Simon Dippenaar is a Cape Town attorney at Cape Town law firm Simon Dippenaar & Associates now also in Johannesburg and Durban of specialised eviction attorneys.

Original article published on FIN24.