Eviction Process
The eviction process can be technical and complex at times and obtaining an eviction order without legal assistance will certainly be challenging. Resorting to unlawful measures suck as lock-outs and power cuts to evict a tenant from your premises will result in the homeowner finding themselves in a much worse predicament than expected.
Residential vs Commercial
When dealing with the eviction of a tenant who is in breach of the lease agreement, one must first distinguish between residential evictions and commercial evictions. A residential eviction must be done in accordance with the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, No 19 of 1998, whereas a commercial eviction is purely based on breach of contract.
Residential Eviction Process
Placing the tenant in breach of the lease agreement
Once a tenant is in breach of any clause in the lease agreement, the landlord must act in accordance with the breach clause of the lease agreement. The breach clause typically stipulates that the landlord must give the tenant written notice of the breach and afford the tenant a certain time period within which the breach must be remedied. The landlord may only cancel the lease agreement after the notice period has lapsed.
Step 1
Cancellation of the lease agreement
Should the tenant remain in breach of the lease agreement after receiving written notice to remedy the breach, the landlord can proceed to cancel the lease agreement. Cancellation of the lease
agreement is an imperative step in the process seeing that an eviction application cannot be launched without the lease agreement being legally cancelled. In terms of the Consumer Protection Act, No 68 of 2008, a landlord is compelled to provide at least 20 (twenty) business days’ notice of breach in respect of a fixed term contract before cancellation can be instituted. Should the tenant remain in occupation of the leased premises after cancellation of
the lease agreement, the tenant is in unlawful occupation of the premises and
the eviction process can commence.
Step 2
The eviction application
Once the tenant remains in unlawful occupation of the leased premises after the lease agreement has been legally cancelled, an eviction application may be launched. The eviction application can be launched in the Magistrate’s Court or the High Court (depending on the jurisdiction of the property), and the application essentially consists of two parts, and two court appearances. We will be able to assist throughout South Africa.
Step 3
Part 1 – section 4(2) authorisation
The first court appearance is ex parte
and no notice needs to be given to the tenant. Section 4(2) of the Prevention
of Illegal Eviction from and Unlawful Occupation of Land Act, No 19 of 1998
directs that the landlord must provide the tenant and the local municipality
with written notice of the landlord’s intention to have the tenant evicted from
the leased premises. During the first appearance, the court will authorise that
the landlord may proceed with the eviction application and serve the
necessary court papers on the tenant and the local municipality as directed in
section 4(2) of the PIE Act.
Step 4
Service of court documents
The section 4(2) court order together with the eviction application will now be served upon the tenant and the local
municipality by the sheriff of the court. Service of the documents must take
place at least 14 days before the second court appearance, depending on the court and specific directives of the court. The tenant will then be informed of the eviction application as well as the second court date, and the tenant can at this stage decide to oppose the eviction application,
vacate the leased premises, or merely ignore the application and remain in
unlawful occupation of the premises. The tenant’s reaction after service of the
eviction application should provide an early indication of what could be
expected.
Step 5
Part 2 – final court appearance
During the second court appearance, the
court will determine whether the tenant is in unlawful occupation of the leased
premises and whether the required notices has been provided as prescribed
by law. The eviction application must also disclose various information to the
court regarding the personal circumstances of the tenant, such as the number
of occupants, whether the premises is occupied by any elderly persons and/or
children, whether the household is headed by a woman, and so forth. The
court will authorise an order whereby the tenant is provided with a certain
period to vacate the leased premises (usually one month from granting of the
order), and should the tenant thereafter still remain in occupation of the
premises, the sheriff of the court will evict the tenant from the premises in accordance with the court order.
Step 6
Eviction of the tenant
Should the tenant fail to vacate the leased premises as directed by the court, a warrant of ejectment will be issued at court and
delivered to the sheriff’s office, whereafter the sheriff will attend to the eviction
of the tenant from the leased premises in order to place the premises back in
the rightful possession of the landlord.
Step 7
Note
It is important to note that arrear rental collection procedures can also be
initiated alongside and run in conjunction with the eviction application.
Step 8
Commercial Eviction Process
Placing the tenant in breach of the lease agreement
Commercial evictions
are purely based on breach of a contract and upon the tenant’s breach of the
lease agreement, the landlord must act in accordance with the breach clause
in the lease agreement. The breach clause typically stipulates that the
landlord must give the tenant written notice of the breach and afford the
tenant a certain time period within which the breach must be remedied. The
landlord may only cancel the lease agreement after the notice period has
lapsed.
Step 1
Cancellation of the lease agreement
Should the tenant remain in breach of
the lease agreement after receiving written notice to remedy the breach, the
landlord can proceed to cancel the lease agreement. Cancellation of the lease
agreement is an imperative step in the process seeing that an eviction application cannot be launched without the lease agreement being legally
cancelled. Should the tenant remain in occupation of the leased premises
after the lease agreement has been legally cancelled, the tenant is in unlawful
occupation and the eviction process can commence.
Step 2
The eviction application
The eviction application will be drafted and issued
at court, whereafter the court will provide an appearance date. The eviction
application stipulating the court date will be served upon the tenant by the
sheriff of the court, whereafter the tenant can either oppose the application,
vacate the leased premises, or ignore the eviction application and remain in
unlawful occupation of the premises. The tenant’s reaction after service of the
eviction application should be an early indication of what can be expected.
Step 3
The court appearance
The court will then consider the papers on the date provided and have specific regard to the breach of the lease agreement and
cancellation thereof, whereafter the court will grant the eviction order.
Step 4
The eviction order
Should the court be satisfied with the eviction application, the court will order the immediate ejectment of the tenant and all person occupying the leased premises under it, and a warrant
of ejectment can be issued immediately after granting of the order.
Step 5
Eviction of the tenant
The warrant of ejectment will be delivered at the sheriff's office whereafter the sheriff will attend to the eviction of the tenant in
order to place the premises back in the rightful possession of the landlord. Should the court also grant a monetary judgement, the sheriff will be authorised to attach and sell the tenant's movable assets at public auction in order to recoup arrear rental owed to the landlord.
Step 6
Note
It is important to note that arrear rental collection procedures can also be
initiated alongside and run in conjunction with the eviction application.
Step 7
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