Property Flash


This is the second article by Savannah Solomons of Solomons Attorneys and Solomons Legal Consulting. Savannah has worked with companies which range from small companies to large corporations as well as multinationals.

She delves into legal questions related to residential and commercial property in South Africa, providing keen insights for Property Flash’s readers.

April 21 2023

Property management requires a lot of time and experience, especially the less enviable aspects of the job which includes managing problem tenants.

Implementing a screening system can assist in reducing the risk of onboarding a problem tenant but the risk can never be avoided in its entirety.

Two of the most frustrating types of problem tenants, are tenants who squat without paying rent and who refuse to vacate and, those tenants who simply disappear. Knowing how to react to these situations legally is vital when managing properties.

Squatting tenants

A squatting tenant is a tenant who, despite demands for payment and formal cancellations of the lease, refuses to pay outstanding rental (often including water, electricity, and effluent) and refuses to vacate the premises.

In this case there are two steps to follow in enforcing your rights as a landlord:

  1. Issue an automatic rent interdict summons

When leasing a premises, the landlord has a tacit hypothec over the movable property on its leased premises to secure payment for unpaid rental.

A hypothec is a right established by law over a debtor’s property that remains in the debtor’s possession.

The landlord is not entitled to remove and sell any movable property without a court order. The automatic rent interdict summons commences the process of securing the hypothec and prevents the tenant from removing any movable property from the premises pending the outcome of the matter in court. Should the tenant attempt to abscond in this instance an application can be brought to ensure that the sheriff can attend the premises and attach the movable property pending the outcome of the matter in court.

2. Issue an eviction application:

An eviction application can only be issued after formal notice of termination of the lease and notice to vacate is provided to the tenant either in terms of the lease or in terms of the Consumer Protection Act (being 20 business days’ notice). If the tenant has not vacated the premises after the expiry of the notice period, an eviction application can be brought.

The following procedure must be followed before a person can be lawfully evicted from a property:

a) The lawful owner of the property or the person in charge of the land approaches the court for an eviction order against an unlawful occupier.

b) At least 14 days before the hearing of the proceedings, the court must serve written and effective notice of the proceedings on the unlawful occupier and the municipality having jurisdiction – this means that should proceedings for an eviction order be instituted, the person against whom the eviction order is requested, must be given notice to appear and/or defend such proceedings at least 14 court days before the date of the hearing;

(i) The notice must state the following:

a. That the proceedings are issued to apply for an eviction order against the name of the tenant;

b. The date and time when the court will hear the matter;

c. The grounds for the proposed eviction; and

d. The rights of the person against whom such an order is sought.

c) On the day of the proceedings and if the court is satisfied that all the requirements have been complied with, and that there is no valid defence that has been raised by the unlawful occupier, the court will grant an order for eviction and determine:

i) A just and equitable date on which the unlawful occupier must vacate the land/premises, having regard to all relevant factors, including the period the unlawful occupier and his/her family have resided on the land/premises in question.S

ii) The date on which the eviction order may be carried out if the unlawful occupier has not vacated the land/premises on the given date.

After the eviction order is granted by the Court the landlord will be entitled to have the tenant removed from the premises.

Absconding Tenants

Tenants who abscond without terminating their lease, remain obligated to the lease they signed regardless of vacating the premises.

Should a tenant abscond and leave its movable property on the premises, the landlord can issue a rent interdict summons to be served on the leased property (provided this is the domicile address in the lease agreement) and ensure the property can be attached to provide security for the outstanding rental as well as damages until such time as a replacement tenant is contracted.

Should the tenant abscond and remove its movable property over night the landlord will still have the right to institute action for outstanding rental, damages for the period in which the premises remains unoccupied and damages for any potential destruction to property at the fault of the tenant. The landlord will also be entitled to claim the cost for obtaining a new tenant from the absconding tenant.


Managing a leased property and its tenant/s is a cumbersome responsibility. While the above methods of dealing with squatting or absconding tenants are effective, they are also expensive and time consuming.

To reduce the risk and ensure success in legal proceedings it is absolutely vital to have a well drafted lease agreement in place and maintain constant communication with any specific tenant. Be vigil in contracting and communicating tenants and, you will reduce financial liability in your long term position as a landlord.

Follow Solomons Attorneys and DTB Incorporated for more information and advice about property and other legal matters.

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