It’s vital to follow crucial procedures to obtain the best tenant possible, such as previous landlord checks, employment checks and credit checks before a tenant’s application is accepted, says Samantha du Plessis of Faircape Leasing,
There are three credit bureaus generally in use in South Africa – Transunion, Experian and Tenant Profile Network. Running a credit check on all three systems is essential, as a default, judgment, notice and/or trace alert could show up on some of the credit checks and not on all three, so you wouldn’t get a true reflection of the tenant’s credit profile, she says.
“Once you have done all the necessary checks, and everything looks good on paper, the most important check that there is no written record of is how the person lives, or the personal habits of the tenant, which can lead to problems in the future.
“Landlords need to understand that when placing tenants in their property there is always the risk that the tenant could default in many ways. These include non-payment of rent, contravention of the body corporate rules, and not maintaining the apartment in the manner that it was given. To deal with any default there are legal procedures that need to be followed, and if these aren’t followed correctly, this could be in the tenant’s favour.”
At present all residential evictions are regulated by the Prevention of Illegal Eviction from and Unlawful Occupation of Land act of 1998, known as the PIE Act.
Marlon Shevelew, a well established eviction attorney, who has much experience with evictions and works closely with the Rental Housing Tribunal, says the secret to a successful eviction is to ensure that the appropriate letter of demand and cancellation (in accordance with the lease agreement) have been sent by the time the eviction application is brought, as this serves as the basis upon which an eviction application is brought.
“To lawfully evict a tenant, the court must grant an order for the eviction of the unlawful occupier wherein it determines a just and equitable date on which the unlawful occupier must vacate the premises. It also specifies the date on which the eviction order may be carried out if the unlawful occupier has not vacated the premises on the vacation date specified,” says Shevelew.
“Since there is entrenched constitutional protection in place, the courts will always balance all relevant circumstances before granting an eviction order. The importance of following the correct procedures from the inception of the first letter sent to the tenant cannot be stressed enough. Not only does the landlord or property manager have to ensure that there is compliance with the Rental Housing Act, but they must be alive to all circumstances of the tenant which may play a part in ensuring an expedited or alternatively a protracted eviction process.”
Shevelew and du Plessis say that if a tenant has defaulted it is advisable to start legal proceedings sooner rather than later.
“You can be assured that the tenant will make promises or excuses, but in most cases this is a delay tactic. Most landlords would prefer tenants who have defaulted to leave as soon as possible, so the landlord can find a new tenant as soon as possible to minimise loss of income.
“And most landlords would agree that property has always been a good investment, so when you have good tenants, hold onto them,” they say.
How is the new consumer protection act affecting the landlord -tenant relationship?
Is it going to to protect the tenant or the landlord and how?
Hi Vladi,
Thanks for your email. Important question you asked. I will write an article about this shortly. The main impact for landlords is when using an agent.
If a landlord lets his property privately there just minor issues and amendments required to your lease.
If a landlord uses an agent, this will require major changes in how business is conducted.
Sorry I can’t be more helpful at the moment.
Michael
Have you now published that article regarding a landlord using an agent to lease their property. I feel seriously agrieved in the way an agency handled my business. Thanks.
Dear Sir/Madam
Our tenant renting our lodge for a period of 24 months (herself an attorney) has violated almost the enitre agreement from the start, amongst others, of course, not paying timely (despite several written and verbal requests (including recorded sms’s, emails,etc) – except for the first month, September 2011 = full payment and full deposit received;; October: 50%; November: 60%; December = none) (due date of payment is 1st of every month). Consequently, on 2 December 2011 the agreement was legally cancelled by our attorneys and the tenanant ordered to vacate on 3 December 2011 at 12h00. She however refuses to accept the cancellation of rental agreement and is still on the premises running her business illegally(?). What are we about to do? She has caused considerable damage to the property which makes the premises in several ways unsafe for the public, including causing the fire-prevention system to be not in a sufficent working order (exhausting the onderground bore hole despite sound advise and even training of her employees how to operate the water sources on the premises responsibly). She even acts after the cancellation of agreemnet as if she still has all rigths as a tenant, restricting, for instance, the Lessor (owers) to visit the premises at any time of their choice (becasues the agreement is already canceled) to carryng out necessary inspection and maintenance, preventing further damage. Please advise. Can we instruct her o vacate immediatlely without a court order, or do we have to follow the long way of going to court, which we intend to do when the courts iopen again mid-January. Is there a possibility for us as Lessor/Owner to apply directy to the Master of Courts (or wherever?) for immediate eviction/vacating of the tenant and what is the cost involved in this? Last question: Is there such a thing that by canceelation of a rental agreement a new Lessor-Lessee relationship (agreement) by common law (“gemenreg”) commences? Thanks for you kind though urgent attention. Eddie Davey 083 442 5933
The duties of the letting agent is not clear. the letting agent takes one month’s rent as his fee, and then another 8% of monthly rental to ensure everything is OK – including the collection of rent and the collection of electricity money.
but if the letting agent is not doing his job, what is the landlord’s recourse?
a leaking pipe? the tenant hs let the letting agent and the owner know about the problem – the owner has emailed and phoned the letting agent 5 times – the letting agent simply does not bother to have this fixed.
the letting agent is being paid to manage the property.
who is responsible for the damage? should the letting agent pay to have the subsequent damage – subsequent to the paipe bursting/leaking – fixed?
Should the letting agent refund the one month’s rent he was given upfront to be the agent for a year?
From internet – comments will be welcomed.
Unscrupulous letting agents to be dealt with – 8 July
The letting industry in South Africa has traditionally been somewhat of a stepchild within the larger real estate business. This status has led to lapses in regulation and has allowed maverick operators to exploit both landlords and tenants. It appears that a number of letting agents are either wittingly or unwittingly committing fraud by using tenant deposits to aid the cash flow of their businesses. To stop these and other abusive practices, concerned letting agents have established The Association of Letting Agents in South Africa (TALASA), a non-profit, self-regulatory body, which aims to improve the regulatory structure within the letting industry. – Moneyweb website
Estate agents : who do they work for? – 13 July
Estate agents love telling sellers how they work for them. The seller pays the commission and therefore the agent’s interest should of course lie with them. That point agents will hammer home incessantly when need be, while at the same time working directly in partnership with any potential buyer. The seller might pay the commission but without a buyer there is no sale so a good buyer will get as much attention (wanted or not) from the agents as the seller. Who do realtors really work for, the seller, the buyer or themselves? – Moneyweb website – the same question arises for letting agents – who do they work for? Are they service providers and can the owners/landlords take them to CPA for bad service?
So can letting agents be reported under CPA?
The letting agent is governed by the Estate Agency Affairs Act. What are the duties and responsibilities of the letting agent? He must be registered with the IEASA? How does the CPA affect the LETTING AGENT?
FW: Many sectional title units in SA are let. People bought for investment and use LETTING AGENTS to manage their apartments.
What are the duties of the LETTING AGENT? The LETTING AGENT IS NOT MENTIONED IN THE RENTAL ACT.
If the RENTAL ACT is broken , the owner could go to jail for 2 years (according to the Rental Act) and fined according to CPA, but it could all be due to the negligence or laziness or incompetence of the LETTING AGENT.
if the owner of apartment appoints a letting agent, must THE LETTING AGENT, by definition, obey the RENTAL ACT? What sections of the Estate Agency Affairs Act are relevant to letting agents?
from www:
Using an Agent
If you use an agent, and there are some very good reasons for doing so, you need to be very careful how you select one. From a landlord’s point of view, selecting an agent is every bit as important as selecting tenants.
Virtually anyone can set up as an agent – you don’t legally need to be qualified – many do and make a complete hash of it, so don’t be a guinea pig. Don’t take the first agent that comes along either – get several agents to review your letting, spend some time with you explaining their services and assessing the property’s letting value.
Agencies vary from one man (or woman) bands operating from a private address through to high street national chains with hundreds of employees. There are pros and cons to both, just as there are from a tenant’s point of view, either renting direct from the landlord or going through a letting agency.
Professional agents will give you an idea of the letting’s rental value, a copy of their contract to review and advise on all the necessary aspects of letting. Get their fees and valuation in writing at an early stage.
Remember, you hire an agent to reduce the stress of letting property, not to increase it. If this is not the case, find another agent fast!
There are always unscrupulous agents and “professionals” around who will take your money and give you a poor or non-existent service. Especially when times get hard some go bankrupt owing landlord’s thousands in rent payments and tenant’s deposits. However, with a little care and common sense these types are easy to spot.
You may decide to use an agent to let the property for you and then carry out the management of your properties yourself, or you may opt for a full management package. Either way you want a professional service which you can rely on.
What should you look for in a Letting Agent?
Membership of one of the professional associations – see the list above – evidence from their shop window and their stationery.
They have Professional Indemnity Insurance cover.
They have a Bonded or secure Deposit Scheme.
Experience, reputation and expertise – how long have they been in business?
Give good advice on the property, decor, tenant types and market.
They have a racial equality policy.
Valuations with integrity – it’s easy to give a favourable valuation to gain business.
Knowledge of the local market and good contacts for tenants, buyers and sellers.
Competitive fees, with no hidden costs or surprises, but remember, cheapest is not always best!
Tenant Verifying – they operate a through tenant checking and referencing system including identity checks.
Tenancy Agreements which are modern and comply with the Office of Fair Trading recommendations.
They use good reliable contractors for their property maintenance and through their retained contractors can get jobs done very quickly.
Staff are properly trained and qualified and they are fully conversant with letting laws including the requirements of the Housing Act 2004.
It’s important that landlords as well as letting and managing agents keep themselves up-to-date with changes in the letting laws.