Tenant Retrenched

[Dolby]

Am I the only one who saw that 'R10 000 for a operation on a cat'? More compassion for a dying feline than a human being in need.

beans - I'm guessing you haven't read the thread as well.

However I'm willing to meet half way that everyone wins.

I'll drop my rental to my fixed costs (insurance, rates etc) and you can cover it - while they seek alternate employment. That way the three of us score.

And btw - dead serious.

You have PM.

 

[Dolby]

Why are you even paying a finders fee in the first place? Can't you rent out the place yourself and cut out the deadbeat estate agents? They're bloodsuckers.

I've had issues with multiple tenants over the past few years and I can't afford to take time off work to rectify any issues and take things through legally, should something happen

 

[Dolby]

Sounds like you might have to consider selling the house and taking investments that won't leave you in debt trying to maintain them.

I going to be selling.

 

[KleinBoontjie]

beans - I'm guessing you haven't read the thread as well.

However I'm willing to meet half way that everyone wins.

I'll drop my rental to my fixed costs (insurance, rates etc) and you can cover it - while they seek alternate employment. That way the three of us score.

And btw - dead serious.

You have PM.

I'm sorry, and I wish I could help. That said, and nothing personal, a lot of people buy a second house as a form of investment. Some people don't think it through. They usually forget that it cost money to maintain said investment and that the market is very volatile, meaning that you aren't guaranteed that you'll have tenants or income from that property at 100% of the time. I was almost in the same situation, lucky for me I have a friend that knows about this kind of stuff and he stopped me from buying. "Is it an investment or a liability?"

I going to be selling.

Looks like good option.

 

[Dolby]

No worries - I didn't want the house, but for various reasons I have it and can't get rid of it right now. Believe me, I've been counting down the years until I can offload it and it's coming soon.

However I do feel that I've gone out of my way. Firstly I'm renting to them at below market value - and have been the past few years. They cannot afford an increase and such, I've absorbed any additional costs to come my way.

They came in, saw the house and signed the lease - then afterwards wanted items repaired. Legally I'm no obligation as those items worked and were there when they viewd and signed - however I replaced at my own costs whatever they needed. In other words for the first few months they were there, I received no income and paid around R30,000.00 extra.

This effected me - whether it be a pet on my side that needed an op, or a repair I couldn't make to something I own, or vacation that I couldn't attend to me is irrelevant. I had no money because I spent it on them and needed to borrow.

I think I've been extremely fair with any request and I'm trying to sort this out to benefit each person involved. I cannot be almost R40,000.00 out because I cannot afford it either. If someone has an idea of how to move forward or wants to cover my minimum costs, I can meet them half way.

I just think it's very unfair of anyone to label me as the bad guy for not taking a R40,000.0 knock - as well as losing an R30,000.00pa on the market price and and extra R20,000 repairs per year. That's R90,000.00 'charity' which is unreasonable to 'give' to a person.

 

[RTC]

Dolby, you need to cut your losses ASAP. This investment is costing you. Either you let the tenant pay you for the rest of the lease period, or the current tenant must find you a qualified tenant that has passed the pre-approval process.

Get a company like http://www.rentmaster.co.za that has been mentioned numerous times on the forum.

You are forking out way too much money for "finder fees"; the tenant insurance (underwritten by Guardrisk) included in the rentmaster fees would suffice for court cases leading to tenant evictions, etc. So that insurance will mitigate the risk of problematic tenants.

 

[SmartKit]

Am I the only one who saw that 'R10 000 for a operation on a cat'? More compassion for a dying feline than a human being in need.

I don't think Dolby is running a welfare organisation here either. He might rely on the income just as much as the next guy. So now he is out of pocket and can't afford his bills, will you now bridge him some finance, or better yet pay his expenses?

 

[noxibox]

You're entitled to charge a cancellation fee that can take into account the cost of finding another tenant as well as lost rent. The deposit is probably less than that, so you will likely have to go with just keeping that.

 

[Albereth]

No worries - I didn't want the house, but for various reasons I have it and can't get rid of it right now. Believe me, I've been counting down the years until I can offload it and it's coming soon.

However I do feel that I've gone out of my way. Firstly I'm renting to them at below market value - and have been the past few years. They cannot afford an increase and such, I've absorbed any additional costs to come my way.

They came in, saw the house and signed the lease - then afterwards wanted items repaired. Legally I'm no obligation as those items worked and were there when they viewd and signed - however I replaced at my own costs whatever they needed. In other words for the first few months they were there, I received no income and paid around R30,000.00 extra.

This effected me - whether it be a pet on my side that needed an op, or a repair I couldn't make to something I own, or vacation that I couldn't attend to me is irrelevant. I had no money because I spent it on them and needed to borrow.

I think I've been extremely fair with any request and I'm trying to sort this out to benefit each person involved. I cannot be almost R40,000.00 out because I cannot afford it either. If someone has an idea of how to move forward or wants to cover my minimum costs, I can meet them half way.

I just think it's very unfair of anyone to label me as the bad guy for not taking a R40,000.0 knock - as well as losing an R30,000.00pa on the market price and and extra R20,000 repairs per year. That's R90,000.00 'charity' which is unreasonable to 'give' to a person.

If you were to sell right now would you get back the R30,000 you spent? One of the reasons for maintaining a property is to maintain (or improve) resale value. Yes, it causes a cashflow problem but you may be better off come sale day.

You menntioned a finders fee. How long ago? Surely there is a conversation with the finder? Maybe you could get a prorated part of the fee back from them, or they find a replacement at a lower rate?

Also think about entering into a new agreement. Let them stay at a reduced rate but the place is now open for your 'agent' to show to new prospects. At least cover rates and insurance. And you have someone to mow the lawn.

 

[Cius]

The renting game is not as easy as it sounds. So many horror stories out there like this one. I know people who pull it off and even have large property portfolios but they are very strict and generally outsource the management to professionals so that they don't have to do all the legwork. Either way good luck. And I would probably not hesitate to evict a non paying tenant. The house is not there for charity, its a business. If you run it like a charity you will sink yourself.

 

[Drifter]

All I'll say is never kick a man when he's down.....

Yes, that!

 

[PsyWulf]

I cant imagine you could legally penalize them for what you willingly did to keep them happy (out of pocket expenses). That said your agreement with whoever found these tenants should include a clause should agreement be terminated early ( was it for a year only? ) if the Lease was for one year originally and they've been with you two years the finder's fee agreement has been fulfilled,any new renters would require you to pay again to find - something to be aware of. Also what does your rental agreement state regarding early termination?

http://www.legaladviceoffice.co.za/2013/10/the-cancellation-of-lease-agreements/

Prior to April 2011; both parties were pretty much bound by the terms of the lease agreement and this was very weighted in favour of landlords and against tenants.

It happens that incorrect terminology is sometimes used when leases are cancelled early. Landlords and their agents often refer to an early cancellation of a lease agreement by the tenant as “a breach of contract.” This is not the case.

In terms of the Consumer Protection Act, tenants have the RIGHT to cancel their leases, as long as they do so while fulfilling ALL the cancellation criteria or requirements. Tenants who do this must do so in writing and must give at least 20 days’ notice. The rental for those 20 days is payable by the tenant; and they must pay same; pro rata, if applicable, to the landlord for that period. This action DOES NOT amount to a breach of contract.

Once the landlord or his agent have received the written notice of cancellation, they should make a note of the date on which the lease is now due to end; and should start advertising immediately for a new tenant for the property. This responsibility lies squarely on the shoulders of the landlord or his agent to find a new and suitable tenant. The costs of so advertising however should also be noted, as these costs can be charged to the tenant, as part and parcel of the “reasonable penalty” that the landlord is entitled to hold the tenant responsible for; as a result of the early cancellation of their lease agreement.

Although the landlord is entitled, in terms of the Act, to hold the tenant liable for a “reasonable penalty” fee for early cancellation of the lease; this does not and is not meant to be used to penalise tenants; but rather is intended to allow the landlord to recoup any losses he may have suffered as a result of the early cancellation of the lease agreement; and the tenant vacating before the lease has run its course.

The costs that may be included in such a penalty would for example include the credit check costs for a prospective new tenant; and any other reasonable incidental costs relating to the new tenant and which have been reasonably incurred by the landlord in finding that replacement tenant; such as advertising costs and would also include the rental lost by the landlord if and during the period that the property was to stand vacant. It is not however a carte blanche penalty which the landlord can simply impose as he sees fit; eg 3 months’ rent. That will not fly. It must be based on his actual financial damages. It has justifiably been described as” a penalty which cannot be charged upfront. They can only be calculated once a new tenant has been found and the landlord cannot gain financially or benefit from the tenants cancellation penalty costs. He is simply reimbursed.”

On this basis; penalty clauses in lease agreements which purport to agree a cancellation penalty in advance will simply not hold up in court.

The inconvenience for a landlord caused by an early cancellation will no doubt be both annoying and time consuming; but it is clear that a tenant has the RIGHT to cancel a lease. The landlord is only then entitled to recover his actual loses in an early cancellation penalty clause.

The CP Act is however vague in that it does not define a “reasonable penalty;” and only states that a reasonable penalty may be charged for early cancellation. In practice however and in SA Law; a person who suffers damages as a result of another person’s actions is only ever entitled to recover those damages which he has actually sustained; and can prove. In practice also; it normally does not take more than a month to find another tenant.

 

[envo]

Okay maybe I missed it when someone mentioned it in here, but a deposit is there specifically to cover situations like this. When you cancel a contract before the term is up (even giving one month's notice), you forfeit your deposit (or part thereof). If you ride out the term of the contract, and you leave (giving one month's notice), then you forfeit the part of the deposit used to repair any damage you caused.

Having said that, the person that was retrenched SHOULD get a severance package, which could be used for stuff like paying rent and food while they're out looking for another job. So all might not be doom and gloom unless they're a habitual "job loser"

 

[Sonic2k]

Having said that, the person that was retrenched SHOULD get a severance package, which could be used for stuff like paying rent and food while they're out looking for another job. So all might not be doom and gloom unless they're a habitual "job loser"

Have you ever been retrenched? Apparently not... Retrenchment packages are measly!

 

[ToxicBunny]

Have you ever been retrenched? Apparently not... Retrenchment packages are measly!

Yup...

1 week for every year worked... not exactly a big safety net.

 

[Epilepticus]

What do you do?

I assume they can therefore legally give notice to seek cheaper accommodation - but what is this notice?
Are there penalties involved for a cancellation?
What about deposit held - forfeited or penalty?

Part 1

Pro-landlord laws

Rent: Can landlord and tenant freely agree rents in South Africa?
Rents can be freely negotiated in South Africa.

South Africa property for saleHowever, the tenant can file a complaint with the Rental Housing Tribunal if the landlord is charging too much rent for poor-quality accommodation. The tribunal can order the landlord to reduce the rent if the building is not well maintained.
Deposits
There is no restriction on the size of deposit, but it must be stated in the contract.

The landlord must invest the money in an interest-bearing account, and the interest rate must not be lower than the rate applicable to a savings account. Within 14 to 21 days of the end of the lease, the landlord must return the security deposit, with interest.

What rights do landlords and tenants have in South Africa, especially as to duration of contract, and eviction?
The landlord cannot prematurely end a fixed-term lease.

If the tenant remains in the unit after the end of the fixed term with the express or tacit consent of the landlord, the lease is deemed to be a periodic lease. Periodic leases can be terminated by giving a month’s written notice.

If the tenant refuses to vacate the property after the expiration of the lease, the landlord must obtain a summons from the court. If the tenant decides to respond to a summons, he or his lawyer must file within three days the “Notice of intention to defend” printed at the back of the summons. A hearing will take place. The court may then issue an eviction order. The landlord must supplement this with a warrant of eviction, stamped by the court. Under the law, notice must be given two weeks in advance before the tenant is evicted.

If the tenant poses an immediate threat to the landlord, then the landlord can file for a “summary judgment.” A summary judgment allows the sheriff to evict the tenant even if the case is still being heard in the court.

To fight off an eviction, the tenant can claim a right of retention, a right to stay in the house until the landlord compensates the tenant for any improvements made on the house.

The Sheriff with the help of the police carries out the eviction. If the tenant owes rent, the court can order the sheriff to attach the tenant’s properties to the house. It means the sheriff can take the tenant’s properties and sell them to compensate the landlord. A landlord can also file for an “interdict,” preventing the tenant from taking his things as long as the arrears are not paid.

EVICTION FOR NON-PAYMENT OF RENT
Duration until completion of service of process 10
Duration of trial 189
Duration of enforcement 10
Total Days to Evict Tenant 209
Courts: The Lex Mundi Project
How effective is the South African legal system?
The Rental Housing Act [No.50 of 1999] provides for the establishment of Rental Housing Tribunals in all provinces of South Africa and grants them the authority to settle disputes between tenants and landlords. So far only three of the nine provinces have created housing tribunals, Gauteng, Western Cape, and North West.

South Africa condominiums apartmentsRental Housing Tribunals use the same procedures as a Labor Court and give rulings with the same power as those of a magistrate’s court. The tribunal has 30 days to help the parties reach a solution. If any party is not satisfied with the proceedings of the tribunal, he may take the case to the High Court.

Recent changes in African landlord and tenant law
Rental Housing Act [No.50 of 1999] repealed rent control which had been in place since 1976. It governs the relationship between the landlord and the tenant and applies to all written and verbal agreements made, effective August 1, 2000. Link :http://www.globalpropertyguide.com/Africa/South-Africa/Landlord-and-Tenant

 

[Epilepticus]

Part 2: (Not our law but similar and interesting.)

How To Evict An Adult Child From Your Home
Many parents these days are faced with having an adult child living with them who has lost their job, gotten into legal or financial trouble, or has become difficult to impossible to live with in your home. Keep in mind, even though they are adults, adult children still should abide by the rules in your house. That could include anything as simple as keeping their room clean or helping with chores to more difficult topics like bringing illegal drugs into your home or bringing people of the opposite sex home for sleepovers, Sleepovers may have been cute when they were 10, but now that they are adults...AWKWARD!

Eviction May Be The Answer

We are not talking about a simple "Failure To Launch" scenario when we are talking about something as extreme as eviction. If your relationship with your adult child has broken down so much that straight honest talk about your expectations have gotten you both nowhere or your adult child is doing things to endanger you or the rest of your family members, it's time to take action.

Did you know in most states your adult child is considered to have "squatters rights" in your home even though they are paying no rent? In an ideal world (fantasy...sigh!), you could simply ask them to leave or change the locks and put their clothing by the curb while they are away. However, the law protects renters. even those who don't pay their rent! There are even laws AGAINST you being able to put their things on the curb. You will have to go through the eviction process.and evict your own child. It may seem harsh, but situations can get so extreme that you are left with little or no choice.


Starting The Eviction Process

A smart thing to do which fits in the covering your bases category (notice how nicely I put that!) is to give your expectations for living in your home to your adult child in writing. Outline exactly what behaviors you will not tolerate and have them sign. Get it notarized if possible. Tell them the consequences, i.e., eviction, of violating the rules. This sets up a tenant/landlord relationship and gives then guidelines for behavior in black and white. Then if they violate the "terms of the lease", it will come as no surprise when you begin the eviction process.




Get The Law On Your Side

Research the laws in your state concerning the eviction process. Every state has different guidelines. Call your local magistrate's office since eviction is a civil matter. What they will ask you to do in most cases is sign an affidavit and fill out paperwork to start the process at your local courthouse. Some counties actually have the form on line which will speed the process considerably. There is generally a filing fee of anywhere from $30 to $90. Trust me, if your adult child is causing legal or financial problems for you, this is money well spent!

After you file the eviction paperwork, your adult child will be served with an eviction notice. This is where things may get very uncomfortable at your home for awhile. The entire process can take anywhere from 10 days to months depending on your state and even the county you live in. Hopefully, your adult child will become so incensed when they realize they are being evicted, they will leave of their own accord. However, I have known of some hard cases who refuse to budge. Stick to your guns, Parents! The sanity you save may be your own!

California Eviction Laws
An overview of the eviction process in a California eviction case including details on what the landlord should do in the court process.
Eviction
Eviction, Evicting Tenants,Skip Trace,Landlord,non payment of rent, Writ of possesion, lock out, renew lease
EZ South Carolina Eviction
Eviction Laws for the State of South Carolina
Serve Them Notice

After your adult child has been served their eviction notice, they generally have an opportunity for a hearing to plead their case. Yes, shocking, isn't it? But truly, the laws are set up to protect renters and sometimes it's bordering on ridiculous when you are thinking of this being your own non-rent paying adult child, If your adult child has no valid defense, the eviction process will continue. In some cases, renters will be given the opportunity to remedy the situation, but if your adult child has been giving you grief for several years, 30 days is hardly enough to turn their life around!

Tough Love Sometimes Is The Only Course of Action

Paperwork still has to be filed with the sheriff's office and the sherriff's office has to issue in many cases a motion to evict. The law may even give the renter anywhere from 30 - 90 days to vacate the property. Once the time has passed, you may move your adult child's things very nicely packaged to the curb for trash pick-up if they still refuse to move. Don't forget to change your locks!

Eviction is an extreme measure to use against your adult child, but their are cases where it is certainly warranted and the only remedy to an impossible situation. Talk first, try to come to an understanding, but if nothing comes from your talking until you're blue in the face, start the process. It's your home and you have the right to say who lives there and what goes on there! Link: http://diyweddingplanner.hubpages.com/hub/How-To-Evict-An-Adult-Child-From-Your-Home

 

[Epilepticus]

Part 3:

Housing Rights (PIE)

Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) (1998)


In sum, PIE provides procedures for eviction of unlawful occupants and prohibits unlawful evictions. The main aim of the Act is to protect both occupiers and landowners. The owner or landlord must follow the provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) (except in areas where ESTA operates) if they want to evict a tenant.

-An unlawful occupier of the land is defined as a person who occupies land without the express or tacit permission of the owner or the person in charge.

-Tacit permission is when the owner is aware of the occupant being on the land or premises but does nothing to stop this.


Who is covered?

Anyone who is an unlawful occupier, which includes tenants who fail to pay their rentals and bonds, is covered by PIE. It excludes anyone who qualifies as an ‘occupier’ in terms of the Extension of Security of Tenure Act
When is an eviction lawful?

For an eviction to happen lawfully, certain procedures must be followed. If any one of them is left out, the eviction is unlawful. So, if an owner wants to have an unlawful occupier evicted, they must do the following:
give the occupier notice of his/her intention of going to court to get an eviction order.
apply to the court to have a written notice served on the occupier stating the owner’s intention to evict the occupier.
The court must serve the notice at least 14 days before the court hearing. The notice must also be served on the municipality that has jurisdiction in the area.

The notice must contain the following:

a statement that says proceedings are being instituted in the court in terms of PIE
the date and time of the court hearing
the grounds for the proposed eviction
that the occupier is entitled to appear before the court and defend the case
that the occupier can apply for legal aid
The unlawful occupier can go to the court hearing on the day it is set down and defend themselves if they believe the eviction is unfair.
A person who wants to defend the court action should approach the Justice Centre at the Magistrate’s court for assistance. An occupier threatened with eviction can apply for legal aid assistance and representation.

The court will only give an eviction order if it is proved that:

the person who is applying to evict you, is in fact the owner of the land
you are an unlawful occupier
the owner has reasonable grounds to ask for your eviction
the local authority or any other owner of land in the area can make alternative land available for you
Urgent evictions
The Act also allows for urgent eviction proceedings. This will be granted if the owner can show that:

there is real danger of substantial injury or damage to any person or property
there is no other way to solve this situation
the owner is going to suffer more if the occupier stays on the land, than the occupier will suffer if he or she gets evicted In such a case, the owner can go to court and get a final order for the eviction.
If the court grants an eviction order:

The eviction order will state a date by when you have to leave the land, and also the date on which the eviction will take place if you do not vacate the land.
The court order may also make an order for your buildings to be demolished.
Who can remove you?

Only the sheriff of the court can carry out an eviction.

Link: http://www.passop.co.za/your-rights/housing-rights-pie

 

[Epilepticus]

Part 4: (Land lord... watch out.)

www.legal-aid.co.za

Evictions
We may provide legal aid if you have been illegally forced out of your property or rented accommodation. We also help with other cases related to the ownership of property.
For example:

You have been evicted without a court order or notice.
You have cancelled your lease agreement and your landlord refuses to pay back your deposit.
The title deed for your property is registered to someone else.
The owner of your property has sold the property to you and someone else too.
A farmer won’t let you bury you family member on the farm that you live on.

And lastly here is a brilliant article for future use... http://www.property24.com/articles/q-and-a-on-rental-issues/8081 (Too lazy to paste now, it's late... zzz)

 

[Venomous]

Which is exactly what we both want.

So I take the finders fee loss of finding them - as well as the next finders fee - miss out on the rent during the process and then transfer the deposit as well? It hardly seems fair tbh and I'd think at the very least the deposit can be kept to reclaim?



I will and have. No one wants a house in this day and age.

tell them you will keep the deposit as a notice month payment.
Should they manage to find a replacement tenant for you, you will return the deposit, in full, permitting there is nothing that needs repairing with that money.

It saves you time and effort, and the tennant gets money they too would need....