Category

Eviction notice

Jul 21
1
Serving an eviction notice

Serving an eviction notice

By | Eviction notice, Evictions, PIE

How to serve an eviction notice legally and properly

Are you a landlord? If so, we hope your tenancies are fruitful and trouble free. We hope you have amicable relationships with your tenants. Unfortunately, we know that isn’t always the case. Sometimes there is a breach of the lease agreement that, for whatever reason, is not remedied within the designated time frame and it is necessary to start eviction proceedings. When this happens, you need to understand and follow the legal requirements and procedures involved in serving eviction notices to tenants. If you take the right steps, your eviction notice will be legally valid. This is a guide to serving an eviction notice correctly.

Legal grounds for eviction

Before serving an eviction notice, you must have valid legal grounds for an eviction. The court will only grant an eviction order if:

  • You are the owner of the land/property
  • The person occupying your property is an unlawful occupier 
  • You have reasonable grounds to evict the occupier

Before resorting to eviction, you must have given your tenant notice of the breach of the lease agreement and sufficient time (as stipulated by law) to remedy the breach. This article is about the eviction order itself; for more information on the full process see Legal reasons for eviction and How to evict a tenant.

The court will take into account whether there is alternative accommodation available. The Prevention Of Illegal Eviction And Unlawful Occupation Of Land Act (PIE) defines an “illegal occupier” as a person who occupies land without the express or tacit consent of the owner or person in charge of the land, or without any right in law to occupy such land. 

PIE also recognises the concept of “unlawful occupiers”, which refers to occupants who occupy land or property with the consent of the owner or person in charge, but their occupation is in contravention of a law or agreement.

Eviction notice

An eviction notice is a formal written document you as the landlord provide to the tenant, informing them they must vacate the property. It is legal notice that you are starting eviction proceedings and should include, among others, the date when the notice is issued, the tenant’s name and contact details, the address of the property, and the grounds for the eviction, such as non-payment of rent, violation of lease terms, illegal activities, or expiration of lease. Avoid language that may be interpreted as threatening or discriminatory. Be concise and specific in your notice. A qualified eviction specialist can ensure your eviction notice is legally sound.

Serve the eviction notice personally

In South Africa, eviction notices must be served personally on the tenant or other adult residing on the property. When serving the notice: 

  • Choose an appropriate time to serve the notice (when the occupant is likely to be available)
  • Make sure the tenant acknowledges receipt of the notice (by signing and dating a copy, or having a witness present at the service)
  • Keep a copy of the notice and the proof of service for your records (it will be used for the eviction application)

Alternative methods of serving the notice

If you are unable to serve the eviction notice personally, you may use alternative methods, such as:

  • Registered mail
  • WhatsApp
  • Email 
  • Attaching the notice to the property’s main entrance

The lease agreement should indicate how legal notices need to be served. However, it is always advisable to have proof of receipt (signed acknowledgement, two ticks on WhatsApp, read receipt on email, etc.) to avoid any potential disputes. 

Allow adequate time for compliance

After serving the eviction notice, the tenant is entitled to a reasonable period to either remedy the situation or vacate the premises. The notice should specify the period allowed and will vary depending on the grounds for the eviction. It’s advisable to seek legal assistance or consult a qualified eviction specialist to determine the appropriate time frame.

Institute legal proceedings

If the tenant fails to comply with the eviction notice within the specified time, you may institute legal proceedings, i.e., apply for an eviction order. Consult with an attorney or eviction specialist to initiate the eviction process correctly. They will guide you through the necessary steps, including filing an eviction application in court, and will represent you during the legal proceedings.

You must serve the eviction notice correctly for the eviction order to be granted by the court. By following the steps outlined above, you can ensure your eviction notice is legally valid, giving you a solid foundation for instituting legal proceedings if necessary. 

For further information

Simon Dippenaar & Associates, Inc. is a law firm of specialist eviction lawyers in Cape Town, Johannesburg and Durban. We help landlords and tenants maintain healthy working relationships but, when it is necessary, we can assist with eviction, ensuring it is effected legally and ethically. Contact one of our eviction attorneys on 086 099 5146 or simon@sdlaw.co.za if you need help with an eviction or a breach of a lease agreement. 

Further reading:

Jul 10
1
Rights responsibilities in rental housing

Tenants’ rights and landlords’ responsibilities

By | Eviction notice, Evictions, Lease Agreement, PIE, Rental Housing Act

What South African law says about eviction

The relationship between property owner and occupier should be a happy one. After all, it offers a reciprocal and mutual benefit. One earns a passive income from an owned asset, and the other enjoys a home to live in, without the weight of responsibility that come with property ownership. Unfortunately, the relationship is not always friendly. Friction can emerge as a result of unpleasant behaviour by either party. Landlords can be unresponsive or unreasonable. Tenants can be disrespectful or negligent. South African law contains multiple pieces of legislation governing rental housing, and both landlords and tenants are accorded rights that protect them. They are also assigned responsibilities they must uphold. But the balance tends to lean towards tenants’ rights and landlords’ responsibilities. In this article we examine them both.

Understanding tenant’s rights

The South African Constitution gives people certain inalienable rights. How do they apply to tenants?

Right to fair treatment in law

A landlord cannot evict a tenant without going through the correct legal procedures. Unfortunately, some landlords take it upon themselves to involve municipal law enforcement to evict tenants. The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act No 19 of 1998 (PIE) is a key piece of legislation in South Africa that regulates the process of eviction. It was enacted to protect both property owners and tenants, ensuring that evictions are carried out in a fair and lawful manner.

The courts take eviction law very seriously. Failure to follow the correct process could result in a heavy fine for the landlord, as well as damages payable to the tenant. In the worst case scenario, the landlord could end up in jail, facing serious criminal charges.

Right to adequate housing 

The Constitution recognises the right to adequate housing as a basic human right. No one’s property may be taken away from them and no one may be evicted from their home without a court order. This means a landlord must apply to court before evicting a tenant from their property.

The court must be satisfied that there is alternative accommodation available to the tenant before ordering the eviction. This can be state housing, as the state has a duty to provide housing to all its citizens. If the tenant has occupied the property for over six months, PIE does not allow the tenant to be evicted without having first secured alternative accommodation.

Right to legal representation

The law gives a tenant the right to defend against an illegal eviction if a landlord forces them to leave the premises without appropriate notice. Ownership does not give a landlord the right to evict a tenant without following the correct procedure.

Tenants have the right to legal representation during the eviction process. If a tenant cannot afford a lawyer, they can seek assistance from Legal Aid South Africa or a pro bono attorney. Further information regarding Legal Aid is available online or from the Registrar of the High Court.

Understanding landlord responsibilities

Landlords have a set of responsibilities towards their tenants. Legislation is motivated in part by past abuses and rental housing law ensures tenants cannot be exploited or unfairly treated.

General obligations

The landlord has the responsibility to:

  • Deliver the property to the tenant for their use and enjoyment. The landlord must provide everything necessary for the tenant to use and enjoy the property, for example, keys, remotes, etc. 
  • Maintain the property in good order and condition for the duration of the lease agreement. Correspondingly, the tenant should report any defects in the property to the landlord.
  • Ensure the tenant’s undisturbed use and enjoyment of the property, i.e., the tenant’s privacy.

Following legal procedures

The PIE Act clearly defines the procedure the landlord must follow to evict a tenant. A property owner must not take the law into their own hands, for example by cutting the electricity or water supply to the property or intimidating the unlawful occupier into vacating the property. A landlord can only consider eviction in the event of a breach of the lease agreement which the tenant has failed to rectify. If the lease is coming to its natural end and the landlord does not wish to renew it, they simply give the tenant notice to quit per the terms of the lease agreement. This is not eviction. However, if the tenant breaches the agreement, the steps in the eviction procedure are:

1. Notify the tenant of the breach.

  • The landlord must issue a warning to the tenant in writing, giving them a specified amount of time to remedy the breach. This time frame is determined by the terms of the lease. Unless otherwise specified, it is 20 working days, in accordance with the Consumer Protection Act (CPA). The CPA is designed to protect consumers in various transactions, including rental agreements. It sets out specific requirements for notice periods and other aspects of the landlord–tenant relationship. If there is no written lease, the landlord must give a full calendar month’s notice. If the tenant rectifies the breach, the matter is finished.
  • If the breach is not remedied within the designated time, the landlord notifies the occupier in writing that the lease is to be cancelled and gives the occupier reasonable time to vacate the property.
  • The notice period required to cancel the lease, like the time allowed to remedy the breach, is dictated by the lease. If no time frame is stipulated, or in the case of a verbal lease, a minimum of one calendar month’s notice is required (end of the current month to the end of the following month).

2. Apply for a court order.

  • If the occupier fails or refuses to vacate the property, despite being given adequate notice, the landlord may approach the court to start the eviction procedure.
  • The court provides the landlord with a date and time for the eviction hearing.

3. Serve notice on the tenant 

  • Written notice of the eviction hearing must be personally served on the unlawful occupier of the property, as well as on the local municipality. 
  • This notice must be served by the sheriff at least 14 business days before the eviction hearing in court. 
  • The notice must indicate the date and time of the eviction hearing, the circumstances surrounding the eviction, and the unlawful occupier’s right defend themselves.

4. The hearing. 

  • At the eviction hearing the court will hear the matter and make a decision whether or not to grant the eviction order. The occupier may defend the eviction. The court will consider factors such as children, elderly or disabled tenants, and woman-headed households, and the availability of suitable alternative accommodation when granting the eviction order. In certain circumstances an order may be granted but “stayed” – delayed – to give the occupier more time to find another home.

Respecting tenant’s rights

Landlords must respect the rights of tenants during the eviction process. Harassment or intimidation of tenants is not permitted.

The landlord is not allowed to enter the tenant’s premises or remove doors to speed up the eviction process. The provisions of the Rental Housing Act are clear on the rights of tenants. The tenant’s rights include the right not to have:

  • Their person or home searched
  • Their property searched
  • Their possessions seized, except by court order

Balancing rights and responsibilities

Evictions are complex processes that require a careful balance between the rights of tenants and the responsibilities of landlords. It is also important to be mindful of ethical considerations, as South Africa has an acute housing shortage at present and a fragile economy. It is always better to try to resolve disputes through negotiation and, if necessary, mediation. Seeking an eviction order through the courts should be the last resort. 

For further information

Simon Dippenaar & Associates, Inc. is a law firm of specialist eviction lawyers in Cape Town, Johannesburg and Durban. We help landlords and tenants maintain healthy working relationships. Contact one of our eviction attorneys on 086 099 5146 or simon@sdlaw.co.za if you need help with tenants’ rights or landlords’ responsibilities. 

Further reading:

Apr 07
0
Legal reasons you can evict a tenant

Legal reasons for eviction

By | Eviction notice, Evictions, PIE, Tenants

Why can you legally evict a tenant?

As a landlord, you have a responsibility to your tenants. Your property may be an income-earning asset to you, but you must never lose sight of the fact that, to your tenants, it is home. Evicting a tenant is not an action you should enter into lightly, not least because it could cost you a considerable amount, both in legal costs and in lost income, should it take you a while to find another tenant. Unfortunately, sometimes the contract between landlord and tenant becomes strained. If you are unhappy with your tenants, there is a process to follow. But first you must have a legitimate reason for seeking an eviction order. What are the legal reasons for eviction?

Breach of lease agreement

The rental agreement, or lease, lists the terms and conditions of the tenancy. It provides protection to both landlord and tenant in the event of either party failing to fulfil their contractual obligations. Basically, any breach of the lease agreement by the tenant is a legitimate reason for you to cancel the lease. At this point it is very important that you understand the difference between cancelling the lease and evicting a tenant. Eviction is a legal process that is carried out via court order and the intervention of the sheriff (if necessary). Eviction is not in the hands of the landlord. See Eviction – how does it work? for an explanation of the proper procedure. Your lease should have a clause in it detailing the consequences of breaching any of the terms of the lease. What constitutes a breach? There are several circumstances.

Rental arrears

The most common breach is non-payment of rent. It is up to you how much leniency you wish to exhibit. If a tenant is a day or two late with the rent one month and they are otherwise a good tenant, it may be that the bank has made a mistake or some other human error has occurred. Tenants often set up debit orders to go out on the 29th of the month, to ensure the landlord receives the rent by the first of the following month. February always causes problems! Give your tenant a call and let them know you haven’t received the rent; this usually sorts the matter. If the rent is still not paid, or if you have experienced repeated incidents of this nature with no explanation and the rent is now in arrears, your tenant is in breach of the lease agreement. You are legally entitled to start eviction proceedings.

Illegal activities

If you discover that your tenant is engaging in criminal behaviour, this is a reason to start the eviction process. This might involve harbouring and/or selling stolen goods; dealing drugs, including cannabis (remember possession of cannabis is legal for personal use, but selling it is not); or using the premises for sex work (whatever your views one way or the other, sex work is still illegal in South Africa). The difficulty comes in proving your suspicions. You cannot claim a breach of the lease on a hunch. But don’t take the law into your own hands. If you have reason to suspect a crime is being committed, report it to the police and let them handle it. Only once you are certain your tenant is carrying out illegal activities may you begin the eviction process.

End of the lease agreement

Most lease agreements run for one year, occasionally two years, less commonly six months. At the end of the lease period, there is usually an option to renew, but it is not compulsory that you extend the lease. You may have decided to sell the property or move back in. If your tenant continues to occupy the property after the lease has expired or been terminated, and you have given notice according to the lease agreement and legislation, the tenant is now an illegal occupier and is required to vacate the property. If they don’t leave of their own accord, you may have to go to court to start the eviction process.

Violation of the lease terms and condition

If your tenant is in violation of the terms you have agreed other than rent, this constitutes a breach of the lease agreement, just as non-payment of rent does. The same process should be followed. In the first instance, speak to the tenant informally about your concerns and ask them to rectify the matter. If this does not work, send a letter notifying them that they are in breach and giving them a time frame (determined by legislation) to put things right. If they fail to do so, you are entitled to start the eviction process. Violations include pets on the property when the lease does not allow pets; excessive noise (i.e., nuisance complaints); unauthorised or excessive numbers of occupants (i.e., the property is being used as a commune when the lease specifies a maximum of e.g. four inhabitants; subletting without permission, or use of the property for purposes other than indicated in the lease (i.e., running a retail business from a non-commercial property).

Health and safety issues

It’s unusual, but occasionally tenants violate health and safety rules, putting themselves and neighbours at risk. A case arose a few years ago of a mushroom farm whose compost was causing such noxious odours that neighbours took the farm to court (see Nuisance law – when an odour mushrooms out of control). In this case, the farm was owned and not rented and the court case involved nuisance law rather than eviction. Had the offenders been tenants, the landlords would also have had a case against them.

Property damage

Most leases have a clause about the respective responsibilities of landlord and tenant, usually divided between maintaining the fabric of the building, which is the owner’s responsibility, and keeping the property generally clean and well maintained, which is the tenant’s duty. If the occupant is negligent and fails to reasonably maintain the property or advise the owner of structural problems, the landlord can seek eviction. For example, if the roof is leaking and water ingress is causing damage to walls, and the tenant does not notify the landlord, this is neglect. If the tenant accidentally or willfully breaks fixtures and does not repair them, this is damage. The damage must be significant for there to be grounds for eviction, and there must be evidence (i.e., photos).

Eviction procedure

Before undertaking a formal eviction process, you must send notice to the tenant informing them of the breach of the lease agreement, with specific reference to the clause they have violated. Give your tenant a reasonable chance to put things right (see Letter of demand). Inform them that only if no action is taken in that time will you cancel the lease. We can draft the letter and send it on your behalf. Many tenants will take a lawyer’s letter more seriously than one from the landlord alone.

Contact us

At Simon Dippenaar & Associates we are specialists in property law. We know rental housing legislation and the Consumer Protection Act inside out and we act for both landlords and tenants, so we know the challenges faced by both parties. Contact one of our eviction attorneys on 086 099 5146 or simon@sdlaw.co.za if you need advice on letters of demand or the eviction process.