When Giving the Tenant “The Last Chance” Can Be Fatal to the Eviction Process

A common mistake that many landlords make during eviction matters is attempting to resolve matters with the tenant informally. This usually includes concluding “good faith” or informal agreements with the tenant when legal proceedings have commenced or have even been concluded. 

Often times, landlords make the decision to pause the eviction process after the tenant pleads and promises to settle their rental arrears and comply with their rental obligations. In an effort to alleviate the emotional and financial strain already incurred through the eviction process, landlords allow the tenant to remain in occupation of the property on the understanding that the tenant will make continued rental payments.

Landlords need to be made aware that allowing a tenant to remain in occupation of the property, while continuing to accept rental payments carries great legal risks. This conduct may later be interpreted as tacit consent to the tenant’s continued occupation on the property. Should the tenant yet again fail to make those rental payments as promised, which is usually the case, the eviction process previously halted may unfortunately no longer be continued as a new verbal lease agreement between the parties has been created. The legal consequences are that the original eviction process is undermined. The landlord may be required to withdraw the original proceedings and institute a fresh eviction application, beginning again at terminating the tenant’s rights to occupy the property before proceeding with the eviction application.

Similar risks may arise even after an eviction order has been granted by the court. In practice, landlords sometimes allow tenants additional time to vacate the property based on excuses given by tenants that they are still in search of alternative accommodation and assurances of “good faith” payments during this extended time. While such arrangements may seem reasonable, they unfortunately may be interpreted as creating a new tacit agreement or extending the original lease agreement. This potentially undermines the eviction court order already granted and complicates executing on the court order even further. These effects are that the eviction process be restarted and unfortunately results in further delays and increased legal costs causing increased emotional distress to the landlord.

Therefore, landlords are advised to exercise caution before entering informal occupation arrangements regarding continued occupation of the property while accepting rental payments without proper legal advice. Doing so only complicates the eviction process and, in some instances, the eviction court order already obtained cannot be revived.

Disclaimer: The above should not be accepted as legal advice, and you are encouraged to seek legal advice.

Prepared by Khanyisile Mabunda