Asked by the Customer on 10-02-2015 17:12:30
Question posted in the Landlord Tenant Law category relating to Western Cape
Question posted in the Landlord Tenant Law category relating to Western Cape
Good afternoon.
We live in the UK and own a property in Cape Town. A local agent represents us when we rent our property for the nine months we are not living here each year.
The tenant who has just left in January defaulted on the last two months rental and incurred late payment penalties. Our agent has, in the final statement, offset the owed rental with the deposit paid by the tenant at the begining of the tenancy in April 14.
However, the tenant caused damage to furniture and fittings and property is also missing, which we expect to be deducted from the deposit. He broke several conditions of the tenancy agreement, including running a business from the house(he converted the garage to a paid-for gym), holding regular large parties and causing misery to our neighbours. We expect the agent to chase the tenant for rental owed. The agent appears to be taking no such action.
My question is, should we demand payment of the owed rental from the agent, leaving the agent to chase the tenant to recover what they can?
We live in the UK and own a property in Cape Town. A local agent represents us when we rent our property for the nine months we are not living here each year.
The tenant who has just left in January defaulted on the last two months rental and incurred late payment penalties. Our agent has, in the final statement, offset the owed rental with the deposit paid by the tenant at the begining of the tenancy in April 14.
However, the tenant caused damage to furniture and fittings and property is also missing, which we expect to be deducted from the deposit. He broke several conditions of the tenancy agreement, including running a business from the house(he converted the garage to a paid-for gym), holding regular large parties and causing misery to our neighbours. We expect the agent to chase the tenant for rental owed. The agent appears to be taking no such action.
My question is, should we demand payment of the owed rental from the agent, leaving the agent to chase the tenant to recover what they can?
Message from the Attorney
Posted by Att. Patrick on 10-02-2015 22:12:15
Hi there and thank you for your question,
Legally, I don't think that you have a good claim in law to demand payment of the owed rental from the agent, leaving the agent to chase the tenant to recover what they can. Your agreement with the agent is probably quite limited, and won't make the agent liable for anything .... let along rental or damages!
Your claim for the arrear rental is unfortuantely against the tenant. Your only real options are:
1) Ask the agent if they are registered withe TPN, and if so, ask the agent to blacklist the tenant.
2) Sue the tenant in the small claims court
3) Hire an attorney to sue the tenant in the magistrates court
I can't refer you to a specific attorney, but I can direct you to the following two websites, www.findanattorney.co.za OR www.attorneys.co.za, where you can find a list of qualified attorneys in your area who will be able to assist you further!
Regarding the running a business from the house, there's nothing you can do now. The tenant is (I assume) out of the property. Same thing for the large parties and misery to your neighbours. Realistically, now that the tenant is out, what are you going to do? You could sue the tenant if there is any damage to the property, but that's about it.
Your best bet is to use a better agent - somebody who is registered with TPN, and somebody who will actually perform a PROPER tenant history check, and credit check on potential tenants.
Lots of people would rather have a tenant who pays 10% more in rental than somebody else, but what happens when the tenant leaves with arrears and damages. Then you are sorry.
Regarding the agent - you might be able to claim back a portion of the commission for the 2 months that no rental was paid. You could also ask that the agent deals with the repairs - as I assume that is within their mandate. The agent shouldn't charge you for that.
Also, with respect to legal fees, the agent will wash their hands of this. The fees from any lawyer that you hire will unfortunately be for your own account. You'll be able to claim a portion of the fees back from the tenant, but you'll need to sue the tenant first!
My advice - use the deposit to fix the damages. Then sue the tenant for arrear rental. This would be an easy claim and you could sue the tenant by way of application (quicker, cheaper, easier) instead of summons!
DON'T use the deposit for the arrear rental, since then you would be left with a claim against the tenant for damages, which is HARDER to prove in Court, and you would need to summons the tenant and run a trial....
If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.
Att. Patrick
Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.
Legally, I don't think that you have a good claim in law to demand payment of the owed rental from the agent, leaving the agent to chase the tenant to recover what they can. Your agreement with the agent is probably quite limited, and won't make the agent liable for anything .... let along rental or damages!
Your claim for the arrear rental is unfortuantely against the tenant. Your only real options are:
1) Ask the agent if they are registered withe TPN, and if so, ask the agent to blacklist the tenant.
2) Sue the tenant in the small claims court
3) Hire an attorney to sue the tenant in the magistrates court
I can't refer you to a specific attorney, but I can direct you to the following two websites, www.findanattorney.co.za OR www.attorneys.co.za, where you can find a list of qualified attorneys in your area who will be able to assist you further!
Regarding the running a business from the house, there's nothing you can do now. The tenant is (I assume) out of the property. Same thing for the large parties and misery to your neighbours. Realistically, now that the tenant is out, what are you going to do? You could sue the tenant if there is any damage to the property, but that's about it.
Your best bet is to use a better agent - somebody who is registered with TPN, and somebody who will actually perform a PROPER tenant history check, and credit check on potential tenants.
Lots of people would rather have a tenant who pays 10% more in rental than somebody else, but what happens when the tenant leaves with arrears and damages. Then you are sorry.
Regarding the agent - you might be able to claim back a portion of the commission for the 2 months that no rental was paid. You could also ask that the agent deals with the repairs - as I assume that is within their mandate. The agent shouldn't charge you for that.
Also, with respect to legal fees, the agent will wash their hands of this. The fees from any lawyer that you hire will unfortunately be for your own account. You'll be able to claim a portion of the fees back from the tenant, but you'll need to sue the tenant first!
My advice - use the deposit to fix the damages. Then sue the tenant for arrear rental. This would be an easy claim and you could sue the tenant by way of application (quicker, cheaper, easier) instead of summons!
DON'T use the deposit for the arrear rental, since then you would be left with a claim against the tenant for damages, which is HARDER to prove in Court, and you would need to summons the tenant and run a trial....
If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.
Att. Patrick
Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.
Message from the Customer
Thanks for the reply. Really helpful. Can you briefly explain how we go about taking the tenant to the small claims court and what sort of time scale we should expect. He is a slippery fish - what happens if he ignores any paperwork? I understand he is building a property but he doesn't seem to have a permanent address at the moment.
Kind regards,
Jane Parsons
Kind regards,
Jane Parsons
Message from the Attorney
Posted by Att. Patrick on 12-02-2015 12:53:49
Hi there Jane,
Step 1 is for you to visit the small claims court yourself (as legal representatives are not allowed there) and fill in a summons with the help of the clerk of the court. Your problem is that you live in the UK, so I'm not too sure how you will do this yourself. I don't think that you can send anyone else - because you need to sign the document yourself and appear in court yourself.
My suggestion is therefore that you hire an attorney to sue the tenant in the magistrates court - that way you can be legally represented and you don't need to leave the UK. Also, your attorney could apply for summary judgment without you needing to come to court.
The sheriff will serve any documents on the slippery fish. If he tries to evade service, the sheriff will try harder. The sheriff might need a little pressure from your attorney to force him to speed things up and do his job!
The documents need to be served on him - either left at his residential house, or left at his work address, or personally wherever you find him.
If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.
Att. Patrick
Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.
Step 1 is for you to visit the small claims court yourself (as legal representatives are not allowed there) and fill in a summons with the help of the clerk of the court. Your problem is that you live in the UK, so I'm not too sure how you will do this yourself. I don't think that you can send anyone else - because you need to sign the document yourself and appear in court yourself.
My suggestion is therefore that you hire an attorney to sue the tenant in the magistrates court - that way you can be legally represented and you don't need to leave the UK. Also, your attorney could apply for summary judgment without you needing to come to court.
The sheriff will serve any documents on the slippery fish. If he tries to evade service, the sheriff will try harder. The sheriff might need a little pressure from your attorney to force him to speed things up and do his job!
The documents need to be served on him - either left at his residential house, or left at his work address, or personally wherever you find him.
If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.
Att. Patrick
Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.
Message from the Customer
Hello Patrick.
This is probably the last supplementary! We have now been advised by our agents that they will use the Rent Tribunal to pursue this case. The Tribunal representative met with the agent yesterday and agreed we have a case. The Tribunal/agent agreed to issue today an order to the tenant to pay unpaid rental within three days. If it is not paid, it will be deducted from the deposit (with the approval of the Rent Tribunal) and paid to us. The Tribunal will then consider the claim for damages and repairs as submitted by us and counter claims by the tenant, and adjudicate on that, making an order to the tenant on payment sum agreed. There is no charge for this service apparently, but I wonder how much teeth a Tribunal has against, say, the small claims court as you advise. What do you think? Kind regards, Jane
This is probably the last supplementary! We have now been advised by our agents that they will use the Rent Tribunal to pursue this case. The Tribunal representative met with the agent yesterday and agreed we have a case. The Tribunal/agent agreed to issue today an order to the tenant to pay unpaid rental within three days. If it is not paid, it will be deducted from the deposit (with the approval of the Rent Tribunal) and paid to us. The Tribunal will then consider the claim for damages and repairs as submitted by us and counter claims by the tenant, and adjudicate on that, making an order to the tenant on payment sum agreed. There is no charge for this service apparently, but I wonder how much teeth a Tribunal has against, say, the small claims court as you advise. What do you think? Kind regards, Jane
Message from the Attorney
Posted by Att. Patrick on 10-03-2015 10:36:34
Hi there,
If the Housing Rental Tribunal is willing to take on the case then you should proceed with that avenue. I was always under the impression that you would need to attend in your personal capacity, and since you're in the UK, I didn't think that would be an option for you.
The Housing Rental Tribunal does have teeth to make orders. The Courts are trying to move as many rental disputes as possible to the Housing Rental Tribunal. You can even have a writ of exectition issued by the Housing Rental Tribunal if the tenant fails to pay the debt. This will allow the Sheriff to attach the tenant's assets!
I think that this is a good route!
If the Housing Rental Tribunal is willing to take on the case then you should proceed with that avenue. I was always under the impression that you would need to attend in your personal capacity, and since you're in the UK, I didn't think that would be an option for you.
The Housing Rental Tribunal does have teeth to make orders. The Courts are trying to move as many rental disputes as possible to the Housing Rental Tribunal. You can even have a writ of exectition issued by the Housing Rental Tribunal if the tenant fails to pay the debt. This will allow the Sheriff to attach the tenant's assets!
I think that this is a good route!
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