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.
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.
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.”
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.
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?
