No or Partial Payment of Deposit and First Month’s Rent

In this tenant scam, a tenant will pay part of the deposit and/or first month’s rent and convince the landlord to allow the tenant to have occupation of the property and make promises to pay the rest later. When the agreed payment date arrives, the tenant will usually: make a further promise to pay later; provide the landlord with a plausible reason as to why payment could not be made; or stop responding to the landlord altogether. This tenant scam is actually quite common, and usually, most eviction cases stem from tenants employing this tactic.

There are several steps that a landlord can take to try and reduce the chance of falling for this tenant scam, such as:

• Requiring FULL payment before handing over the keys to the property.
• Contacting previous landlords to find out if the tenant failed to make any payment to them. [Note: Some landlords will sometimes hide the fact that the tenant failed to pay to try and have the tenant move out to avoid the costs of evicting the tenant.]
• Examine the payment history of the tenant on a platform such as TPN.

Late Payments

Another common tenant scam used by some tenants is to pay the rent late; the tenant will usually pay later and later to try and “train” the landlord into accepting whatever the tenant wants. Usually, when the date for payment arrives, the tenant will provide somewhat convincing reasons for the late payment; however, this usually evolves into the tenant failing to pay altogether.

There are several steps that a landlord can take to try and reduce the chance of falling for this tenant scam, such as:

• Insisting on payment as agreed to in terms of the lease agreement.
• Taking quick action when the tenant fails to make payment as agreed to in the lease agreement. This conditions the tenant to make payment when they have to, or else they will receive a letter of demand or some other notice.
• Examine the payment history of the tenant on a platform such as TPN.

Prepayment of Rent

This uncommon tenant scam involves the tenant offering to prepay the rent, then prepaying the rent (Eg, for 4 months) and then making no further payments whatsoever. While this tenant scam is hard to detect, there are steps that can be taken to try and reduce the likelihood of falling victim to this tenant scam.

Steps that can be taken:

• Examine the payment history of the tenant on a platform such as TPN.
• Determining the tenant’s ability to afford rent through an affordability assessment.
• Determining where the money comes from. This is to see if the money received was a one-off payment or if it is a regular occurrence. Example: If the money is from the tenant’s monthly wage or salary, this could be seen as a reduced risk. If the money comes from a business deal that was successful, this could be seen as an increased risk.

Demanded Alterations

Some prospective tenants will demand that a property be renovated or that certain changes be made to the property before the tenant moves in. In this case, the tenant might be demanding unreasonable changes and/or renovations, and this should be guarded against. These tenants usually prove difficult to work with and are prone to withholding rent or other payments if they do not get their way, and hence it might not make commercial sense to do business with this type of tenant.

Steps to avoid this type of tenant:

• Make sure that the property is maintained to a reasonable state.
• Talk to previous landlords to get a feel of what type of person the tenant is.
• Examine the payment history of the tenant on a platform such as TPN.
• Talk to the tenant to get a feel for what type of person the tenant is.
• Act in a calm and reasonable manner. The moment you become overly emotional, the tenant will abuse this to try and make their move.

Fake Proofs of Payment

This is, unfortunately, a common tenant scam used by some tenants to trick the landlord into thinking that payment has been made. In this case, the tenant would manipulate an existing proof of payment (“POP”) to show that payment has been made, or the tenant would create a completely fictitious proof of payment and provide it to the landlord. This tenant scam is hard to detect by looking at the proof of payment itself, but some investigation can quickly reveal the truth.

How to avoid:

• Wait for the funds to clear.
• Google the bank that supposedly issued the proof of payment, and phone the bank to confirm the details of the proof of payment.
• Examine the payment history of the tenant on a platform such as TPN. Some tenants that are prone to this tactic will usually have done it before.

Disclaimer: The above should not be accepted as legal advice, and you are advised to seek legal advice. The above is based on our own observations, and your circumstances may be different to warrant a different solution or outcome.

The post Common Tenant Scams every Landlord needs to watch out for first appeared on EasyEvictions.

While the Rental Housing Tribunal can assist property owners with granting an order that a tenant must pay arrear rent, the Rental Housing Act, 50 of 1999, must be considered in order to arrive at an answer. In particular, section 13(14) of the Rental Housing Act, which reads as follows:

The Tribunal does not have jurisdiction to hear applications for eviction orders.

In light of the above, the Rental Housing Tribunal cannot hear any application for the eviction of a tenant from a property. Further, the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 19 of 1998, specifically provides that only a court (whether a Magistrates’ Court or a High Court) has the power to grant an eviction court order for residential evictions. This conclusion is supported by section 1 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, which defines a court to mean:

any division of the High Court or the magistrate’s court in whose area of jurisdiction the land in question is situated

Accordingly, it can be argued that any award made by the Rental Housing Tribunal for an eviction is unlawful and can be challenged on the basis that the Rental Housing Tribunal acted outside of its statutory powers and hence the award is ultra vires.

The above should not be accepted as legal advice, and you are advised to seek legal advice.

The post Can the Rental Housing Tribunal grant me an eviction? first appeared on EasyEvictions.

For so long as the tenant has the right to occupy the property, the tenant cannot be evicted from the property and hence it is crucial that the right to occupy the property be terminated in accordance with the applicable laws and the agreement. If the right to occupy is not terminated in accordance with the applicable laws and the agreement, the right to occupy the property will survive and continue to allow the tenant to occupy the property and resist an eviction.

Most landlords are of the view that simply telling the tenant to leave the property is sufficient to terminate the lease agreement; however, this is not so. The right to occupy the property needs to be terminated, and only then can a landlord tell the tenant to vacate the property.

The above should not be accepted as legal advice, and you are advised to seek legal advice.

The post Why is it so important that the right to occupy be terminated? first appeared on EasyEvictions.

Something else to bear in mind is that the Courts can order that the cost order be on a particular scale, with those scales being: party-and-party costs; attorney-and-client costs; and; attorney-and-own-client costs. The scales differ as follows:

Party-and-party Costs

These are the legal costs that are incurred according to the applicable Court’s prescribed tariffs and which costs are strictly necessary for the matter to proceed. This means that you will not get back the majority of your legal costs because this is the lowest scale, which applies by default.

Attorney-and-client Costs

These are the legal costs that are incurred for all attendances but at the applicable Court’s prescribed tariffs. These costs are normally awarded when the applicable agreement specifically provides that the tenant shall be liable for the landlord’s “attorney-and-client” legal costs.

This is the second-highest cost scale and does not apply by default unless the applicable agreement specifically allows this scale to be claimed. It is also possible to ask for this scale because of the misconduct by the non-paying tenant.

Attorney-and-own-client Costs

You can only claim attorney-and-own-client costs in the High Courts and this is usually only permitted where the applicable agreement specifically allows you to claim attorney-and-own-client costs.

These legal costs are the legal costs actually incurred by the landlord in paying the attorney for the eviction or other proceedings; however, not all legal costs actually incurred can be recovered from the non-paying tenant. This is the highest legal cost scale.

The above should not be accepted as legal advice, and you are advised to seek legal advice.

The post Can I make the non-paying tenant liable for the legal costs of the eviction? first appeared on EasyEvictions.

What we would recommend is that the landlord should engage the non-paying tenant to agree on a date and time at which the non-paying tenant will vacate the property, and the landlord can even offer to help the non-paying tenant find new accommodation. The thinking behind this is that it may prove to be quicker and cheaper to try and reach an agreement as to when the non-paying tenant will leave. We highly recommend that the agreement to leave be put in writing, as this can be used should the need to evict the non-paying tenant arise.

If the non-paying tenant is engaged and it appears that the non-paying tenant is not serious about leaving the property, then you may want to commence with eviction proceedings as soon as possible. It often turns out that some non-paying tenants will try and use the good-faith engagement to extend their stay as long as possible.

In light of the above, we recommend starting eviction proceedings the moment it appears that the non-paying tenant is not serious about vacating the property (or the non-paying tenant has previously agreed to leave but continued to stay on the property).

The above should not be accepted as legal advice, and you are advised to seek legal advice.

The post My tenant claims he is unemployed and cannot pay rent. What do I do? first appeared on EasyEvictions.

Some signs that a prospective tenant may become a non-paying tenant include the below signs.

Poor Payment Record

The prospective tenant has a poor payment record based on interactions with previous landlords. You can approach various credit bureaus for credit reports in respect of the prospective tenant. You can also get a landlord-specific report from TPN (https://mrisoftware.tpn.co.za/) and this report should detail the payment record of the prospective tenant.

A potential red flag is when the prospective tenant has made late payments or missed payments altogether and hence a credit report, or a tenant report from TPN, is crucial in vetting your prospective tenant.

Employment Status

A prospective tenant that is currently unemployed, on probation, self-employed or relying on a third party to pay for rent is a risk not to be taken lightly. Accordingly, it is a good idea to have a tenant who is employed in a stable job.

Some self-employed tenants experience cash flow issues and may default on paying rent, and in fact, this is a source of many evictions that we attend to. Even prospective tenants employed by their own companies may experience this, and hence it is a risk to be considered before proceeding to place the tenant in the property.

Difficult Personalities

Another issue is that some prospective tenants may be difficult to deal with and develop a sense of entitlement to having a certain state of affairs operate in a particular manner. Accordingly, we recommend that you meet the prospective tenant to get to know the prospective tenant to try and ascertain if the tenant might become difficult later on.

Key signs include:

• Demands that the property be in a very specific state (such as: wall colours; new cupboards when the existing cupboards are acceptable; new tiling when there is no damage to the existing tiles; new light fittings when the existing fittings are in a good and working condition; unreasonable security measures; etc).
• Refusing to sign credit check consent forms.
• Refusing to let you contact their previous landlords.
• Refusing to provide payslips.
• Demanding unnecessary changes to the lease agreement.
• Insisting that there is no need for a written lease agreement.

Changing Relationships

While it may sound unfair, a fair number of breakups result in evictions needing to be carried out by the landlord because it often happens that a relationship ends and the one partner is left in the property. The remaining partner may have difficulty in affording the rent and other obligations.

The question to be asked is: can each tenant pay the rent and still afford household necessities? Often, it later occurs that the partners cannot individually afford the rent and this results in rental defaults.

Affordability

The prospective tenant claims to have the necessary funds to afford the property, but when you look closely at the usual income and expenses of the prospective tenant in question, it transpires that the prospective tenant cannot afford the rent in the long term.

Another tell-tale sign is that the tenant lives beyond their means by having a fancy car but not earning enough to afford the car.

Property Hopping

Some non-paying tenants tend to move from property to property in an attempt to escape the arrear rent that the prospective tenant has racked up, and hence, a prospective tenant who seems to be hopping from rental property to rental property may be a sign that the prospective tenant is unable to pay rent in full and on time.

The above should not be accepted as legal advice, and you are advised to seek legal advice.

The post What are the signs that a potential tenant might become a non-paying tenant? first appeared on EasyEvictions.

Loss of Rental Income

The most obvious answer to the question is that you are losing money every day that the non-paying tenant is in the property and we often refer to this as a loss of opportunity because for so long as the tenant is in the property, you cannot lease the property to a paying tenant and hence your losses will increase as time goes by.

Increased Overheads

Another reason is that you would usually be liable for the costs of owning the property while the non-paying tenant is in occupation of the property. These costs accumulate quite quickly, and hence some landlords have to pay substantial amounts once the non-paying tenant has been evicted from the property.

Risk of Damage to Property

There is the risk that the non-paying tenant may cause damage to the property, as the non-paying tenant has already shown disregard for the obligations of the non-paying tenant in regards to paying of rent and hence it is hardly a stretch to conclude that a non-paying tenant will not properly maintain the property. This is compounded in situations where there is an existing dispute between the landlord and the non-paying tenant because the non-paying tenant may feel aggrieved and hence have little reason not to damage the property.

Rental Boycots

Some non-paying tenants will let the paying tenant know that the non-paying tenant is not paying rent and this may encourage other currently paying tenants to also cease paying rent. This is especially true when the non-paying tenant is aggrieved or feels slighted by the landlord.

Inability to Maintain the Property

Where a non-paying tenant is in unlawful occupation, the non-paying tenant might refuse to allow the property to be maintained. This leads to increased renovation costs when the non-paying tenant is finally evicted. In some cases, the non-paying tenant would refuse to allow maintenance to take place in order to claim in court that there has been no maintenance in order to try and sway the court when hearing the eviction application.

Eviction Time Periods

Most evictions require certain time periods to pass before a subsequent step can take place and hence starting with the eviction process sooner will result in these time periods running – even if it later becomes unnecessary to proceed with the entire eviction process.

The above should not be accepted as legal advice, and you are advised to seek legal advice.

The post Why should I evict a non-paying tenant as soon as possible? first appeared on EasyEvictions.

(1) Notwithstanding anything to the contrary contained in any law or the common law, the provisions of this section apply to proceedings by an owner or person in charge of land for the eviction of an unlawful occupier.

In the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act:

“owner” means the registered owner of land, including an organ of state;

“person in charge” means a person who has or at the relevant time had legal authority to give permission to a person to enter or reside upon the land in question;

In light of the above, there are only two groups of people who can seek an eviction order: firstly, the owner of the property; and secondly, the person in charge of the property. While this appears to be rather narrow, the courts have interpreted the above to mean that the following persons can sue for an eviction order:

• Persons who own the property and have their names on the title deed;
• Executors of late estates;
• Trustees;
• Curators;
• Liquidators;
• Sublessors;
• Estate agents – where mandated to lease the property;
• Property managers, where mandated to grant the right to occupy the property; and,
• Any person who has been given the authority to grant someone the right to occupy the property.

Generally speaking, the courts prefer that the property owner sues for the eviction, as it is easy to prove that the property owner has the right to sue for an eviction; however, this is not a rule against someone else suing for the eviction.

The above should not be accepted as legal advice, and you are advised to seek legal advice.

The post Who are the only people allowed to evict someone from property? first appeared on EasyEvictions.

The reason why you should not lock out non-paying tenants is that section 16(hA) of the Rental Housing Act specially makes it a criminal offence to unlawfully lock out tenants, and the punishment for doing so could be a fine, imprisonment or both a fine and imprisonment.

Another reason why it is not recommended to lock out non-paying tenants is that the tenants could approach the Rental Housing Tribunal or any court for an order that you must give them access and possession of the property and hold you liable for their legal costs.

In light of the above, we recommend that you do not lock out non-paying tenants unless you have a court order permitting it.

The above should not be accepted as legal advice, and you are advised to seek legal advice.

The post Can I lock out non-paying tenants? first appeared on EasyEvictions.

In terms of section 16(hA) of the Rental Housing Act, it is a criminal offence to unlawfully disconnect the water and lights of a tenant and you could be sentenced to a fine, imprisonment or both a fine and imprisonment.

In addition to the above, the tenant will be able to approach the Rental Housing Tribunal or a court for an order that the water and lights be reconnected and you will be held liable for the tenant’s legal costs in obtaining such an order.

Accordingly, it is recommended that disconnections of utilities take place within the confines of a duly obtained court order.

The above should not be accepted as legal advice, and you are advised to seek legal advice.

The post Can I disconnect the water and lights of a tenant when they are behind with rent? first appeared on EasyEvictions.