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Evicting a tenant

Credit: Samantha Moore is an associate at Myers, Fletcher & Gordon and is a member of the firm's Property Department.

EVICTING a tenant is probably one of the most difficult tasks faced by landlords of properties governed by the Rent Restriction Act (hereafter referred to as "the Act"). Quite often, a landlord may find himself on the 'wrong side' of the law by engaging in acts such as changing the locks on the doors, taking out windows or disconnecting utilities in order to remove a tenant from his property.

These acts must never be considered as first option as they are in breach of the Act. Below is a summary of the correct procedure which must be followed where a landlord desires to recover possession of property to which there is no exemption from the Act.

Before a tenant is served with an eviction notice, the landlord must ensure that he has a valid reason for doing so. Section 25 of the Act provides a number of reasons for which a tenant may be served with notice. These include: the rent which is lawfully due from the tenant has not been paid for at least 30 days after it has become due; or the tenant has broken some obligation of the tenancy or has failed to perform some obligation for at least 30 days; or the premises are required by the landlord for his own use and occupation or for occupation by some person wholly dependent on him; or the premises are required for the purposes of being repaired or renovated.

Once a landlord can satisfy any of the reasons stated in the Act, he can proceed to serve the tenant with a notice to quit the premises. A notice to quit must specifically state the reason the tenant is required to vacate the premises and the date by which the tenant is to do so. It is important that the appropriate period of notice is given, for example, where the tenant pays rent monthly, the notice must be given at least one month before the rent is due and should expire the day before a new rent period begins.

It is important to note also that if a landlord gives a tenant notice to vacate the premises for arrears of rent and the landlord accepts payment of the rent from the tenant before the expiry date of the notice, the notice is no longer valid and there can be no recovery of the premises based on that notice.

If the tenant remains in possession of the premises after the notice expires, the landlord must never take matters into his own hands and attempt to remove the tenant forcibly. Many landlords mistakenly believe that they are at liberty to remove the tenant forcibly from the premises as soon as the notice period expires.

The Act provides that except under an order or judgement of a competent court, no person shall forcibly remove the tenant from the rented premises or do any act, whether in relation to the premises or otherwise, which is calculated to interfere with the tenant's quiet enjoyment at the premises or to compel him to deliver up possession of the premises. The Act goes on to state that where there is evidence that a landlord is guilty of carrying out the acts mentioned above without a court order or judgement in place, he could face imprisonment for a maximum period of 12 months.

In essence, once the notice to quit has expired, the proper procedure is for the landlord to start court proceedings to obtain an order for possession of the premises. The matter is usually begun by lodging a plaint in the Resident Magistrate's Court along with particulars setting out the nature of the claim. Once the plaint has been lodged, the court will then issue a summons which must be served on the tenant within a particular time. If the tenant fails to attend court on the date mentioned in the summons, the resident magistrate will issue a default judgement for possession. However, if the tenant attends court on the mention date and indicates that he intends to defend the claim, the resident magistrate will set a date for trial.

Where the court decides to grant the order for possession, the tenant will be given a fixed time period within which to vacate the property. The landlord will then have to file and serve on the tenant a formal order stating the date by which the court has ordered the tenant to vacate the premises. The tenant may apply to the court for an extension of time two weeks before the expiry date. If the tenant remains in possession of the premises after the expiry date without obtaining an extension of time from the court, the landlord should seek assistance from the bailiff's office. Upon paying the relevant fees, the landlord should instruct the bailiff to take the necessary steps to remove the tenant from the premises.

There is no doubt that the Act was intended to protect the rights of tenants. As such, it is of great importance that landlords, who own properties subjected to the Act, familiarise themselves with the correct procedure for evicting tenants.

One must, however, note that a landlord can apply to the Rent Board for his property, whether it be commercial or residential, to be exempted from the Act. By obtaining such exemptions, landlords will be free to negotiate on terms that are mutually favourable to both parties and will ensure that they find themselves on the 'right side' of the law.