By Simon Dippenaar, as featured on FIN24.com
When can a family member be evicted?
Eviction of a family member is a big subject. Families come in all shapes and sizes with all sorts of relationship dynamics. The family member tenant could be as close as an adult child who hasn’t left home yet or as distant as a cousin of a late father who is occupying a property through some long-forgotten verbal agreement.
Whatever the status of the family member, circumstances may arise where the person in charge of the property needs to cancel the lease or start the eviction process. Let’s look at how that process might differ for the eviction of a family member, if at all.
Quick answers about evicting a family member
Can you evict a family member from your home in South Africa?
Yes, but not by force or self-help. If the family member lives in the property as their home and refuses to leave after lawful notice or cancellation, a court process may be required. The fact that the occupier is a relative does not remove the court-order rule.
Can you change the locks on a family member?
No. Changing locks, putting belongings outside, cutting utilities, or using intimidation can become an illegal eviction. If the person will not leave voluntarily, use the lawful process and get advice before taking action.
What if there is no written lease?
No written lease does not automatically mean there is no legal relationship. There may be a verbal lease, an implied agreement, permission to occupy, or another family or estate arrangement. The correct notice and eviction route depends on the facts.
Can you evict a family member with no written lease?
Possibly, but the absence of a written lease does not mean the person can be removed by force. There may be a verbal lease, an implied agreement, permission to occupy, a contribution to household costs, or an estate/right-of-occupation issue. The owner or person in charge should first identify the legal basis of occupation, withdraw permission or cancel any agreement properly, and then use the correct court process if the person refuses to leave.
Can a parent evict an adult child?
Yes, an adult child can be required to leave the home in appropriate circumstances, but parents should not change locks, remove belongings, or use intimidation. If the adult child has been living there as their home, especially while contributing to costs or rent, the facts may require notice and a lawful eviction process.
Is an eviction letter enough for a family member?
No. A written request or notice may help prove that permission has been withdrawn or that the lease has been cancelled, but it does not physically evict the person. If the family member remains in occupation, a court order may still be required before removal.
Just ask
It may seem obvious but the first thing to do is to ask the person to leave. After all, families should be able to talk to one another. If the situation is not otherwise acrimonious, why introduce a legal process that is bound to cause tension? Have the conversation! But if that doesn’t work, or if the relationship with the family member is already strained, what should you do?
Does the family member have a lease?
Is there a lease? This is a very important question. If the family member holds a standard tenancy agreement, the process is no different than for any other tenant. The first step is to cancel the lease. If there are no grounds for cancellation, i.e. rent is paid on time and the property is well maintained, you must wait for the expiry of the lease and give the tenant notice to quit on the basis that you do not intend to renew the lease. Remember there are statutory notice periods you must adhere to. Only if the tenant then refuses to vacate the property can you initiate the eviction process to secure the eviction of a family member.
If there is no written lease there may still be a verbal lease or an implied agreement. A verbal lease is as binding as a written contract, though it is always advisable to have a signed written lease. This removes any doubt or confusion surrounding the terms of the agreement.
Before starting the eviction process, check these facts
- Who owns the property, and who has authority to make decisions about it?
- Is there a written lease, verbal lease, contribution to household costs, or other agreement?
- Has permission to occupy been clearly withdrawn or has the lease been properly cancelled?
- Is the family member an adult child, parent, sibling, partner, spouse, heir, or beneficiary?
- Are there children, elderly people, disabled people, or other vulnerable occupants in the home?
- Does the dispute involve a deceased estate, will, life right, usufruct, trust, or pending transfer?
These facts matter because a family dispute can quickly become an eviction dispute under PIE. A careful first step is usually better than an urgent correction later.
Adult children
What happens when a 30-year-old son still lives at home and Mom and Dad want to reclaim their privacy? They have been very generous in allowing him to remain in the family home, with or without paying rent, long after most offspring have moved out. If he has contributed to household costs, such as utilities, this could be considered rent. He has now outstayed his welcome. If he does not respond to a reasonable request to move out, the parents will have no choice but to initiate formal proceedings. Although it is very unlikely a family in this situation will have a written lease, the acceptance of rent or a contribution toward household expenses is considered a verbal lease. The process described above then applies. Mom and Dad must effect a lease cancellation and cannot just deposit his belongings in the street and change the locks.
An executive decision
It often happens that a property owner passes away and a family member resides in the home. Where the family member is a spouse the inheritance will be dealt with through the will or the laws of intestacy (in the absence of a will). In the case of eviction of a family member other than spouse, both the lease and the will may have an impact on the final outcome. An elderly sibling of the deceased owner may have a lease granting tenancy in perpetuity, or the will may stipulate that the property cannot be sold until after the tenant’s death. These documents must be consulted before considering eviction.
However, provided there are no provisions of this nature, the law gives the executor the power to dispose of the estate in accordance with the wishes of the deceased. If there is a tenant in situ, and the executor elects to sell the property, the tenant has no extraordinary rights. Due process must be followed and the tenant cannot be summarily removed from the property, but the executor has the right to cancel the lease and begin the eviction process if the tenant does not cooperate. In the case of Meyer NO v Sifile, which came before the Western Cape High Court in 2011, the court ruled that the purpose of the PIE Act extends to executors, who have the right of eviction of a family member. The court noted that “The estate of a deceased person is an aggregate of assets and liabilities and a totality of the rights, obligations and the powers of dealing therewith, vests in the executor.”
Estate-linked family evictions need particular care. An executor, heir, or owner may have authority to deal with the property, but a family member living in the home may still be entitled to notice and a court process before removal. The will, letters of executorship, any lease, any right of occupation, and the occupier’s personal circumstances should all be checked before papers are issued.
When the family member is an abuser
Perhaps you share your home with a family member who abuses you. Domestic abuse can take the form of physical, mental or emotional abuse. You do not have to be married to the abuser to lay a claim of domestic abuse. There only needs to be a domestic relationship, defined as:
- A person you are married to, whether in a civil or customary marriage
- Your partner (of the same or opposite sex) who lives or has lived with you, even though you were not married to each other
- The other parent of your child or someone who shares parental responsibility with you for a child
- Someone related to you by blood ties, marriage or adoption
- Someone you share a residence with
If you suffer abuse at home, you can obtain a protection order in terms of the Domestic Violence Act 116 of 1998. This prohibits the abuser from entering the shared home. This should protect you from further abuse and is much swifter than eviction, which may not be relevant if the abuser if not your tenant. However, if the abuser is your tenant and you can prove that imminent harm will be caused by them, you may be able to secure an Urgent Eviction.
Source and legal note
The core rule comes from section 26(3) of the Constitution: no one may be evicted from their home without a court order made after considering all relevant circumstances. PIE regulates the eviction of unlawful occupiers and requires court supervision. In estate-linked cases, the executor may have authority to act for the estate, but the occupier’s removal still has to follow the correct legal route.
If a family member is removed without a court order, the matter may become an illegal eviction. For a practical guide to what landlords and owners may not do, see our guide to illegal eviction in South Africa.
Legal advice is essential
In any case involving the eviction of a family member, legal advice is strongly advised. It may be tempting to think that matters can be handled within the family, but some of the most contested cases are between relatives. Simon Dippenaar and Associates are experts in property law and will make sure a difficult situation does not become explosive. You and your family members will be treated fairly and in complete compliance with the law. Contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za.
Further reading:
- For more about the eviction process, click here.
- Opposed eviction
- Don’t cross the line into an illegal eviction
- Lease Agreement template
- Getting to grips with the Rental Housing Amendment Act
- ESTA – blishing the rights of people in rural areas
- Eviction notice got you in a panic?
- How much does residential eviction cost?
