An eviction process can only lawfully be carried out against a person/s whom are considered by the law to be unlawful occupiers. The law would consider a person an unlawful occupier if they do not have the consent of the landlord to occupy the premises , if the person has no right in law to stay on the property and is not considered to be an occupant by any other governing legislation.
A well drafted lease agreement will contain a Cancellation Clause as standard. Each party has the right to cancel the contract under certain circumstances as prescribed by law. These circumstances are determined, inter alia, by common law, the Consumer Protection Act 68 of 2008 (applicable to natural persons), the Rental Housing Act 50 of 1999 (as amended) and the terms of the lease, as executed by the parties.
If a tenant breaches the terms of the lease, he/she must receive a notice of the breach from the landlord. The tenant then has a prescribed period to remedy the breach. If the necessary remedies are not made within the stipulated period, the lessor may cancel the contract according to the governing legislation. Should the lessor cancel the contract, the tenant will be considered an illegal occupant and he/she must immediately vacate the property failing which an eviction application can be sought.
An example of a breach of a lease would be in instances where the tenant fails to pay his/her rent on time or at all, or if the period of the lease has expired and the tenant fails to vacate the leased premises. A lease may also provide that non-payment of rental is a ground for cancellation without requiring a demand for the remedy of the breach.
In the case of the former, the landlord however has two options available to them and therefore an eviction does not always follow when a tenant fails to pay their rent. The landlord may either inform the tenant that they are in breach of the contract and after a notice of cancellation has been delivered, initiate the eviction process or the landlord may choose to issue a summons to collect the rental arrears, either as an independent legal step or in parallel with the eviction application.
The benefit to a landlord choosing to firstly issue summons for rental arears is that the lease agreement is not necessarily cancelled. The summons could include a rent interdict which prohibits the tenant from removing any furniture/objects from the premises as these form part of the landlords hypothec for rental until the Court has made an order in that regard. As this process takes place in the Courts , it is advisable to obtain professional advice from your attorney.
If the landlord however elects to also pursue the cancellation and eviction process and the tenant continues to occupy the property after a notice of cancellation has been delivered, the tenant will be considered an illegal occupant of the property and may thus may be evicted by the owner through legal process. This process will take place in a Magistrates Court or High Court and therefore the services of an attorney will be required and is strongly advised.
An owner may not take matters into his own hands and evict the tenant without due process. Any attempt by an owner to evict a tenant by cutting off water or electricity will amount to constructive eviction which is considered illegal. It is also important to note that it is currently regarded as a criminal offence to evict a tenant without a valid and enforceable Court Order.
All landlords must follow the procedures in the PIE Act to evict a person. Firstly , the tenant must be notified that the owner has withdrawn or cancelled the consent which allowed the tenant to occupy the property. The tenant must then be given reasonable time to vacate the property.
Should the tenant refuse to vacate , one will need to approach the Court to start the eviction procedure. The Court to approach will be either the Magistrates Court or the High Court in the jurisdiction of the property concerned. The Court will set down a date and time to hear the eviction application.
It is the landlords responsibility to ensure that the sheriff serves written notice of the eviction to both the illegal occupier and the municipality located in the area of the property at least 14 days before the Court date.
On the day of trial, the Court will consider several factors before granting an eviction order such as the rights of children, elderly and disabled persons who might be occupying the property. Some of the other factors considered are dependent on the duration the tenant has occupied the property. The Court will however always consider whether it is just and equitable to grant an eviction order.
Every eviction case’s success depends on the facts placed before the Court. If the Court finds that the unlawful occupier has no valid defence, the Court may grant an eviction order. The eviction order will stipulate when the occupier needs to vacate the property by as well as a date on which the sheriff may remove the occupiers.
There are certain clauses that should always be included in a rental agreement to protect both parties against default or breach. These clauses include, among others; cancellation clauses , time limits, Court jurisdiction and also liability for costs decision if a party decides to go to Court.
As the prospects of obtaining an eviction order are closely related to the contents and interpretation of the lease agreement concerned, it is highly recommended that one obtains professional advice and assistance in the drafting of such agreements.
The eviction procedure is a complicated procedure and many Courts approach the process in a different manner, one should therefore always approach your lawyer for legal advice if you are considering the eviction process.
Contact us today at (012) 344 05 25 or at litigation@mvh.co.za and arrange a consultation with one of our professionals if you are unsure of your rights and/ or the correct procedures to follow.
Mc MENAMIN, VAN HUYSSTEEN & BOTES ATTORNEYS INC.
ANTON DU PREEZ
litigation@mvh.co.za
mvh@mweb.co.za
(012) 344 05-25