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.
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
- 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 email@example.com if you need help with an eviction or a breach of a lease agreement.