EVICTIONS
Most clients who are property owners or landlords consult us because of tenants who are defaulting on rental payments. Depending on how great the arrears, we are instructed to collect outstanding rental and institute eviction proceedings simultaneously.
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​​Since the right to adequate housing is enshrined in our Constitution eviction proceedings are heavily legislated. When a landlord or property owner therefore wants to proceed with eviction proceedings, it is fundamentally important to follow the prescribed processes to the letter. Since a tenant can only lawfully be evicted by an order of court, perceived shortcuts often just lead to delays in the outcome, and to great frustration on the part of the landlord or property owner.
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Distinction must be made between evicting tenants from their homes and eviction tenants from business premises, the former being much more regulated than the latter. A tenant can only be evicted if that tenant is an unlawful occupier of the property. An unlawful occupier is a person who does not have a right to occupy the property for example, a tenant whose rental agreement has been lawfully cancelled.
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HOW TO EVICT UNLAWFUL TENANTS FROM RESIDENTIAL PROPERTIES
The landlord or property owner must strictly comply with the provisions of the Prevention of Illegal Eviction from Unlawful Occupation of Land Act 19 of 1998 ("the PIE Act"). In terms of the PIE Act measures were introduced to, amongst others,
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Lawfully evict unlawful tenants;
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Ensure that eviction proceedings are fair in the circumstances and only ordered after the court has taken into consideration all relevant circumstances;
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determine a date on which the unlawful tenant must vacate the premises; and
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determine a date on which an eviction order may be carried out if the unlawful tenant has not vacated the premises.
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Over and above the institution of legal proceedings in the normal course, and compliance with other legislative provisions, the PIE Act requires that an unlawful tenant must be notified at least 14 days before the hearing of the court proceedings for the tenant's eviction. The manner in which the tenant is notified as aforesaid, must be authorised by the court. As a result, the landlord or property owner must, in a separate application, approach the court to sanction the manner in which this notice is delivered to the tenant.
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The notice to the tenant must
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state that proceedings are being instituted for his or her eviction;
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indicate on what date and time the court will hear the proceedings;
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set out the grounds for the eviction; and
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advise the tenant that he or she is entitled to appear before the court and defend the case, and where necessary, has the right to apply for legal aid.
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When evicting an unlawful tenant, distinction must be made between tenants who have occupied the premises for less than six months, and those who have done so for more than six months. A reason for this is because the test that the court must apply differs, depending on how long the tenant was in occupation of the premises.
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HOW TO EVICT UNLAWFUL TENANTS FROM COMMERCIAL PROPERTIES
If the premises is not being used as a form of dwelling or shelter, the Prevention of Illegal Eviction from Unlawful Occupation of Land Act 19 of 1998 ("the PIE Act") is not applicable.
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The unlawful tenant can, however, still only be lawfully evicted by way of a court order after the landlord or property owner has instituted legal proceedings.
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The landlord or property owner can institute legal proceedings by way of summons or application for an order evicting the unlawful tenant.
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Depending on the balance between other commercial considerations and the urgency with which the eviction is required, the property owner or landlord must decide whether to institute action or application proceedings. Where the property owner or landlord wish to include a claim for damages and/or holding over, it may be advisable to institute action proceedings and apply, at summary judgment stage, for the eviction of the unlawful tenant.
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Since the PIE Act does not apply to commercial evictions, the process is less complex and it is not necessary for the court to consider so many factors before ordering an eviction.
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Considering legal action?