Eviction process – how, when and why

Eviction process in South Africa explained

By Simon Dippenaar, as featured on FIN24.com.

Eviction process – how, when and why.? What's the difference between cancelling a lease and evicting a tenant? When can you start the eviction process? Know your responsibilities as a landlord.

Eviction process – how, when and why? The relationship between landlord and tenant and the eviction process is a complex one. At one extreme, it is purely a business relationship between a commercial landlord and a group of anonymous tenants, brokered by a property agent, for example in a block of city flats. The property owner may never meet the tenants. At the other end of the spectrum, it can be a relationship between two people who are or who become friends, for example in the case of a garden cottage on private property or a room in a house. And there are many points between the two where the landlord and tenant may have other social contact. So when it comes to eviction, there may be conflicting emotions involved.

It is important to remember that a tenancy agreement is, before anything else, a contract. The landlord and tenant are engaged in a contractual, business relationship, whatever else they may be in other areas of life. To protect the asset the property represents, the landlord at some point may have to take action that is unpopular with the tenant.

Eviction is not lease cancellation

It’s important to understand the distinction between cancelling a lease and evicting a tenant. They are not one and the same thing. A lease cancellation is the conclusion of a civil contract between two individuals, for a valid reason (we’ll come on to that in a minute). Eviction is a legal process that must be conducted via the courts and requires an attorney. A landlord cannot evict a tenant without going through due process of law. Let’s look at that process.

Evict a tenant: Why a landlord might want to evict

Assuming there is a written lease agreement in place (and even if there is not – see Verbal Lease Agreements), a breach of the conditions of the lease might lead a landlord to want to cancel the lease. The breach might concern living habits, such as excessive noise, keeping pets without the requisite permission, or failing to maintain the property in a reasonable state. But the most common cause of lease cancellation is rent arrears. Of all these transgressions, failure to pay rent has the most severe economic consequences for the landlord but may attract the most leniency, because the tenant may have lost their job or suffered some other financial misfortune beyond their control. There is greater culpability for the other breaches.

Because the law knows that a rented property is someone’s home, it provides protection to tenants. Several pieces of legislation (Prevention of Illegal Eviction Act – PIE and Consumer Protection Act – CPA) ensure that an unscrupulous landlord cannot put a tenant out on the street without warning. The law is particularly sympathetic to vulnerable people, such as children, the elderly, disabled people, or woman-headed households.

Eviction versus cancelling a lease

The landlord must give the tenant notice of the breach and a chance to rectify it…in the case of rent arrears an opportunity to make good the rent due. This is done by way of a warning in writing, giving the tenant a specified amount of time in which to remedy the breach. The time frame will be determined by the terms of the lease, or if not specified it will be 20 working days, in accordance with the CPA. If there is no written lease, the landlord must give a full calendar month’s notice. If the tenant pays up (and does not repeat this breach month after month), the matter is finished and harmony is restored.

However, if the breach is not remedied, the next step is a letter of cancellation served on the tenant by the landlord. In some cases the lease may have expired but the tenant still occupies the premises with the landlord’s consent on a month-to-month basis. This may happen if a tenant is looking to move house or waiting on a job offer that includes relocation. In this case the landlord must give the tenant one calendar month’s written notice of cancellation.

Next step – eviction

With luck, the tenant vacates the property at the end of the notice period. If so, the landlord is free to find another tenant – hopefully one who can pay the rent! However, should the tenant disregard the lease cancellation, the landlord may have no choice but to start the eviction process. At this stage an attorney is required.

The landlord must apply to the court to have an eviction notice served by the sheriff on the tenant – who is now considered an unlawful occupier rather than a tenant (a tenant occupies a property by consent). A court date is set and a deadline given for filing an opposing affidavit (if the unlawful occupier wants to oppose the eviction).

In court, the order will either be granted or the case will be postponed for further fact-finding. In the case of vulnerable individuals, the court may wish to be satisfied that the unlawful occupier can find alternative accommodation and/or that the landlord has behaved fairly and reasonably throughout.

If the court is satisfied that the case for eviction is sound, the tenant/unlawful occupier will be given time to vacate the property. Only if, despite this process, they fail to vacate the property within the specified period, will the sheriff will be authorised to remove them and their belongings from the property. The cost of this will be borne by the tenant. The landlord may not change the locks, physically remove personal property, or behave in a threatening way toward the tenant, however recalcitrant the tenant may be. Only the sheriff may take any physical action against the tenant. A landlord who takes matters into their own hands may find themselves facing serious consequences.

Legal advice is essential

If you want to evict a tenant, an attorney is necessary. Legal advice is not required to issue a notice of lease cancellation, but is strongly advised. Rental housing legislation is a minefield and it’s important to get things right. Simon Dippenaar and Associates are experts in property law and will make sure you and your tenants are treated fairly, with dignity, and most importantly, in complete compliance with the law. Contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za.