When a landlord wants to end a tenancy, it is crucial to follow the correct legal procedures. Not doing so will cause the landlord to run the risk of causing unnecessary delays in securing repossession of the property. Cilna Steyn, managing director of the legal firm SSLR Incorporated, clarifies the legal procedures and implications.
WATCH : Evictions in South Africa.
Q: How does the law define eviction, and what are the relative laws in play?
A: Whenever a person is in illegal occupation of premises, and he/she refuses to vacate after proper request and demand, an owner must approach a court for an eviction order. This is in terms of Section 26 of our Constitution; “no person may be evicted without a court order.” Another very relevant piece of legislation relative to residential property is the Prevention of Illegal Evictions from and unlawful occupation of Land Act 19 of 1998 (PIE).
PIE requires the applicant (owner/landlord) to inform the court of the illegal occupant/s’ personal circumstances so that the court can reach a judgement that is just and equitable. However, there is another legal principle that can come into play, that of Ubuntu, which allows the owner/landlord to also present the court with details of his/her own personal circumstances and the effect of the illegal occupation on the owner.
Evictions, as mentioned, can only be enacted by way of a court order. But make no mistake, this is an extremely specialised field of law, and as much as any attorney would be allowed to bring an eviction application, this is not advised in most cases. The reason relates to detail. If the exact technicalities around eviction are not well understood, and all legal procedural requirements are not perfectly met, an eviction can be delayed for weeks, or, worst case, even months. This is when the horror stories surface.
Now, if this is the type of nightmare a general legal practitioner can find themselves in, imagine how much worse it can be for a member of the public to successfully bring an eviction application to court. It is my recommendation, therefore, that a landlord/owner seeking a legal eviction should find a specialised eviction attorney or firm to avoid delays and what could prove to be weighty costs.
Q: Who are the players involved in an eviction process?
A: The Applicant is the property owner, and the Respondent is the illegal occupant. Each party is entitled to their own legal representatives. In terms of PIE, the relevant municipality must also be notified of any eviction to keep them as part of the legal proceedings should the illegal occupant require alternative accommodation. And should they be entitled to such accommodation, the Sheriff of the Court must serve all documentation on the Respondent as well as on the municipality, and then (of course) the court and the juridical staff members of the court.
Q: What is considered an illegal occupant?
An illegal occupant is somebody who does not have the right to occupy a premises. This could be somebody who gained illegal access to the premises and started using the premises as a temporary or permanent shelter. Or, as mentioned, it could be a tenant or another person who had a legal right to occupy the premises and whose right of occupation has been terminated or cancelled for some or other reason. As long as the cancellation of the right of occupation was done correctly and legally, this person who used to be in legal occupation of the premises will now be considered an illegal occupant.
Q: What is the process that owners/landlords should follow when wishing to evict a tenant from a rental residential property?
A: When a previously legal tenant’s right of occupation is terminated or cancelled, he/she becomes an illegal occupant. This is the case, for instance, when a tenant received proper notice in respect of the termination of the lease agreement at the end of a fixed-term lease agreement or in a month-to-month agreement. The eviction process can commence immediately after the termination of the lease agreement should the occupant fail to vacate.
However, in the context of a tenant that is in breach of a term of the lease agreement, for instance, a tenant that is not paying rent, the lease agreement would have to be cancelled to place the tenant in illegal occupation of the premises before the landlord can commence eviction proceedings. Once the tenant is in illegal occupation due to the cancellation or termination of the lease agreement, the landlord can immediately approach a court with an application for eviction.
As mentioned earlier, this a relatively complex legal process, but in summary, it commences with a Notice of Motion and a Founding Affidavit, setting out the grounds on which the illegal occupant should be evicted, as well as proof of ownership of the immovable property. From that point, the normal civil procedure will take its course. The Respondent (now referred to as the illegal occupant) will have time to oppose the matter, bring about his/her defence, if any, and alert the court to their personal circumstances. In such circumstances, it is ideal for the Applicant (the landlord) to also bring to the court’s attention all the personal circumstances of the illegal occupant.
Q: Generally, how long does an eviction take?
A: The typical residential rental eviction should be concluded within two to three months if the matter is unopposed. However, should the matter become opposed, the time period is highly dependent on the reason for the opposition. If it is a sale in execution and the underlying right of occupation is in question - for instance, should the execution debtor be of the opinion that the execution was done illegally - an eviction of this nature could take up to a year and sometimes even longer since the owner is not a party to those proceedings.
Such proceedings are exclusively between the previous owner and the creditor, which would, in most cases, be the bank that has a bond over the property. The only thing an owner/landlord can do in this case, is to wait for the underlined dispute to be finalised. All is not lost, however. When an eviction can’t commence for a legal-technical reason, the landlord does have recourse to mitigate any damages. For instance, he/she can approach the court for a Utility Disconnection Application (water and power) should the occupant not pay utilities as it becomes due and owing.
Q: What is the role of an estate agent if engaged to sell a property that is illegally occupied or occupied by a hostile tenant to be evicted?
A: In this case, it is really important for the Property Practitioner to fully disclose this situation to any potential purchaser. In terms of the Offer to Purchase or the Sale Agreement, it must be clear that the purchaser will only be able to obtain vacant occupation at a later stage, and the parties will have to agree in terms of the Sale Agreement on how the eviction will be dealt with and how occupational rent will be paid once the transfer takes place and the purchaser is unable to take occupation of the premises.
However, I would never suggest that the sale proceeds with the expectation that the illegal occupant will vacate the premises on his/her own accord because this is usually not the case. It is an extreme risk for a Property Practitioner to not deal with these aspects during negotiations and in the resulting agreement.
Q: Is an eviction costly?
A: There is an incorrect perception in the residential property industry that evictions are very expensive and also slow legal processes, which should be avoided. This is absolutely incorrect and causes more harm to the industry than good.
At SSLR, we split evictions into five specific phases, which allows an Applicant to commence with the first phase by him/herself by utilising tools available to the industry, for instance, those available from TPN, where its system can generate a Letter of Demand and Cancellation Letter.
Phase two, being the drafting, issuing and serving by the Sherriff of the Court of the Eviction Application on the illegal occupant, can be undertaken for less than R 15 000.00. In most instances, a landlord should be able to cover this with the occupant’s money held in a deposit. When a landlord is aware of this fact and that delaying a letter of demand and cancellation and commencement with an eviction with the hope of avoiding this “scary legal process” they will avoid losing months of rental income.
It is of the utmost importance to take action against a non-paying tenant or a tenant in breach of a lease agreement the moment that breach is evident. Delays in approaching the courts for an eviction order are, effectively, delaying the inevitable, and in so doing, an owner/landlord will suffer financial loss.
Writer : Kerry Dimmer
