Collecting past-due rent after a tenant vacates the premises

If your tenant has moved out of your rental property without paying all the rent he owes, you, as the landlord or property owner, are likely frustrated and wondering what your options are.

To recover the money you are owed and possibly additional costs for damages and legal fees, you have several options available to you, including utilising the small claims court or the services of a collection agency.

As a landlord, you have the right to receive all past-due rent money from a tenant even those tenants who has vacated your property. Some landlords have experienced back-threats from tenants, who withhold their rent to pressurise the property owners into taking responsibility for maintenance and repairs but this is unlawful and constitutes a breach of the lease agreement where a good lease agreement is in place. No matter what the problems or unsatisfactory conditions are, rent has to be paid on the due date by the tenant. If the security deposit does not cover the arrear rental or the ancillary amount that the tenant owes, the landlord have the right to take certain steps to collect the rent owed to him.

In South Africa the landlord can sue a former tenant for breach of contract in the small claims court. If you decide to go this route, you may also collect money for damage to the property, as well as money to cover any legal fees. However before one begin the process of instituting action in the Small Claims Court, you must weigh the amount of time and effort this will take against how much money your tenant owes. Currently one may only institute claims in the Small Claims Court to a maximum amount of R 15 000.00 and do not need any legal representation at the proceedings.

In lieu of the Small Claims Court, you can also hire a Collection Agency to recover the money your tenant owes you. In order to do this, it is best to gather all pertinent paperwork and evidence and provide same to the Collection agent, such as your lease or rental agreement, any receipts or work orders from repairs done to the property due to the tenant’s damage, the tenant’s most current contact information, proof that you’ve attempted to collect on your debt and any registered letters you have sent to the tenant for arrear rental. Some Collections Agencies may charge an up-front fee while others charge a percentage of what they recover.

The South African Constitution and various case laws stipulate that all South Africans have the right to adequate housing, and this obliges the courts to consider legal proceedings carefully where the result may land a defaulting tenant on the street. Even so, it has been recognised that non-payment of rent is a breach of the lease agreement and those guilty of it will in the long run be called on to pay not only the money owing but also the interest on unpaid rents and the legal costs involved, provided that this has been covered in the lease agreement.

It is important for landlords to understand that they should not resort to threatening their non-paying tenants but should rather take the legal route. If the tenant owes a substantial amount of rent and left significant damage to your property, Small Claims Court or even Magistrate Court proceedings may be the right option.

In order to prevent this kind of occurrence from happening in the future, diligently check every rental applicant you consider — even to the point where it may seem like overkill. Thoroughly check an applicant’s credit, rental and employment history. Perform a background criminal check, and follow up on every reference an applicant provides and furthermore ensure that a deposit equal to at least two months’ rent is paid prior to the start of the lease agreement to cover any unpaid rents and repairs. Don’t ignore any red flags that pop up while you’re investigating a tenant, as this could lead to more trouble down the line.

Reference List:

• CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA, NO. 108 OF 1996

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.