April 17, 2017 at 11:00 am #371marleneKeymaster
With an unpredictable economy, the rise and fall of a great number of companies due to mining strikes and various other influences it is not surprising that Landlords are being subjected to even more unpredictable Tenants in Rustenburg.
Out of pocket and desperate, increasingly Landlords are confusing their own RIGHTS for the DUTIES of the Rental Agent and placing unrealistic demands on Agents, to their own detriment.
Being a smart Landlord includes separating your rights from the duties of the Agent and then to step in and act once a Tenant has defaulted.
Safe for exceptional circumstances, only the Landlord has the right or capacity to bring an action or to appear in court (locus standi) or to apply for the eviction of an unlawful occupant in terms of the PIE Act.
In terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 19 of 1998 it is only the owner or the person in charge of land who make bring an application for eviction. A “person in charge” is a person who has at the relevant time had legal authority to give permission to a person to enter or reside upon land. This should not be confused with an Agent who acts on instruction (duty) in terms of a mandate as opposed to having a “right” or legal authority in terms of this Act.
In most cases the Rental Agent is there to advertise the property on behalf of the Landlord, arrange viewings with prospective tenants and then to acquire supporting documents in order to conduct a credit check during the application process in order to avoid prospective tenants with a history of debt or default payments.
With trusted Agencies, the agreement with the Rental Agent extends further as the Agent will conduct inspections on behalf of the Landlord, will become involved with maintenance issues and will see to the invoicing of Tenants and collection of rent.
In exceptional and rare instances the Rental Agency will lease the property from the Owner and will assume full responsibility for the Tenant and by virtue of their right to “sub-let” will take the place of a “person in charge”. The right to take action and/or to evict then being assumed by the Agency instead of the Landlord.
It is highly advisable that the contract with the Agent is reduced to writing independently from the lease agreement as this agreement sets out the contractual obligations of the Agent and the failure to do so will inevitably result in uncertainty and confusion.
Once a Tenant then defaults on their obligations in terms of the lease agreement it is generally the Rental Agent’s duty to inform and advise the Landlord accordingly, whilst it is the Landlord’s right to act against the Tenant. At this stage it is advisable to take action immediately and do we suggest that you then approach an attorney for proper.
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