Landlords, know your rights: the eviction process explained

For many landlords, evictions are seen as something which is next to impossible, especially in today’s socio-economic climate, however this is not always the case and evicting a non-paying tenant is not an impossible task. Landlords who are tired of having to ask the tenant for their rent that is due and payable, or having to deal with so called “nuisance” tenants do have options available to them, through the Court. The eviction of a tenant from a residential premises, is governed or carried out in accordance with the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (“PIE Act”). This Act was put into place to ensure that a due process is followed and that the rights of the both the tenant as well as the landlord are protected throughout.

One must remember that an eviction cannot take place without reason and must be deemed as just and equitable. If a landlord chooses to begin the process of eviction, they will need to start with the cancellation of the lease agreement currently in place between the parties. As stated above, an eviction cannot be concluded without reason, be it the tenant not paying rent; the tenant damaging the property or even the lease agreement reaching its expiration period, there has to be cause for the eviction. The landlord, in the case of a breach, must provide the tenant with a notice calling on him or her to rectify their breach, for example make payment of the outstanding rental. In the instance of a written lease agreement, that is governed by the Consumer Protection Act (CPA), i.e., where the parties are not juristic persons, this notice must provide the tenant with at least twenty (20) business days to remedy their breach. If the breach is not remedied, the landlord has the right to cancel the lease and send a letter to the tenant informing them of said cancellation and request the tenant to vacate the premises.

Where the parties do not have a written lease agreement in place, or the agreement has lapsed and has been continuing on an implied month to month basis, the landlord can still evict the tenants. A verbal lease agreement is deemed as valid as a written one, although it is always recommended that you have the agreement placed in writing. The landlord will instead be required to provide the tenants with a calendar months’ notice of their intention to cancel. The process of the eviction thereafter is the same, whether the lease is written, verbal or open ended. When a tenant does not, after being duly requested, vacate the premises, the landlord is entitled to apply to the Court for an eviction order. Court proceedings can become very intricate, and it is important to obtain legal advice from a professional able to handle the matter according to the letter of the law, ensuring that due process is followed.

With the right legal advice, the process of an eviction can be simplified and in fact it can be quite manageable. When a tenant refuses to vacate the unit, they will be deemed to be in unlawful occupation of the premises, and a Notice of Motion in terms of Section 4(1) of the PIE Act, with a Founding Affidavit, will be drafted and sent to the relevant Court for issuing. In the Affidavit the landlord is to place all of the facts of the matter on record, i.e. who the parties are; when the lease was entered into; exact terms of the lease; breach of the lease as well as attempts to have the breach rectified. The Court will provide a date for hearing of the eviction matter and the documents must be served on the tenants by the Sheriff of the Court. After the documents have been personally served on the tenant, they can either oppose the matter or not. Thereafter, a Section 4(2) Notice must be authorised by the Magistrate, and this Notice needs to be served upon the tenant at least fourteen (14) days prior to the hearing date.

Upon the date of the hearing of the eviction application, the Magistrate will run through the papers. Essentially what this means is that the Magistrate will check that all the ‘boxes’ have been ticked in so far as due process is concerned. The Magistrate will ensure that there was a valid lease in place; there was a breach of the lease; the tenant was given time to remedy said breach and thereafter provided sufficient notice to vacate the premises due to them not remedying. If the Magistrate finds that it is just and equitable to grant the eviction, i.e.  the tenant will not be rendered homeless, they will usually order that the tenant leave the premises within a months’ time. This is standard practice as it is deemed as a sufficient period for the tenant to find alternative accommodation. In the scenario where the tenant does not leave by the date so ordered, then the Sheriff of the Court will be authorised to physically remove them, and all those living or occupying the premises, from said premises.

As with many legal matters, evictions can often be strenuous on all the parties involved, and it is reiterated that legal advice is sought to help you with your problematic tenants through a streamlined process. Since the arise of COVID-19, the idea of evicting a tenant, has further been burdened due to the strict lockdown regulations put in place by the government. Again, this does not mean that the process is completely impossible as evictions are allowed to take place during adjusted Level 2, so long as there is a Court Order in place. Here at HJW Attorneys we regularly assist landlords, rental agents and property managers alike with a dispute/s that they may have with their tenant/s. From inception to the actual removal of the tenant, we can assist you and ensure your rights are protected throughout.

This article is provided for informational purposes only and should not be substituted for legal advice on any specific matter. Any opinions expressed herein are subject to the law as at the time of writing and will change in accordance with any change in the law. We recommend that you contact HJW Attorneys at info@hjw.co.za directly for advice applicable to your specific matter.