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  • Writer's pictureRikus Scheepers

Residential Evictions - what a landlord should expect

Evicting a tenant can be a daunting and frustrating task. Seeking the appropriate assistance in this process is the first step in moving on from this unfortunate situation. We refer to this as getting the right sidekicks to support and guide you through this operation.

How to evict someone from my property

Evicting someone is the process of legally removing them from your property against their will. But we don’t live in the wild west, we don’t settle our disputes with duels in the street, and we don’t take the law into our own hands (though the town’s sheriff still has a role to play).

The right not to be evicted from your home without a court order is enshrined in our Constitution, and the process that needs to be followed to evict someone from a residential property is set out in the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, known as PIE, a mouth full. The purpose of this act is not to infringe on the rights of property owners, but to ensure that a fair process is followed by providing the procedures that must be followed when evicting an unlawful occupier.

Quick tip: As tempting as it may be, disconnecting utilities, changing locks, or sending someone to intimidate the unlawful occupant is an offence which can land you in hot water – a fine or imprisonment of up to two years kind of hot water.

When may I evict someone?

You can apply to evict a tenant from your property once they are illegally occupying it. A distinction is drawn between a tenant being in breach of the lease agreement and being an unlawful occupant: only after you cancel the lease agreement as a result of the tenant’s breach or if the lease expires, and the tenant remains in the property, will they become unlawful occupiers.

How do I get an eviction order?

The first step is to notify the tenant that they are in breach of the lease agreement. Have a close look at the terms of your agreement – it should state how many days’ notice you must give the tenant to remedy the breach, and how the notice must be delivered (by hand, registered mail, or e-mail). These clauses are usually labelled “Breach”, “Notices”, and “Termination / Cancellation”. The timeline to remedy the breach must be specified in the notice. If the agreement does not specify a notice period, or if the Consumer Protection Act applies to the lease agreement, you must allow the tenants 20 business days to rectify the breach after receiving notice.

If the tenant is in arrears, the notice should state that the landlord may cancel the lease if the tenant fails rectify it. If the tenant reacts positively to the notice and remedies the breach, then the relationship is restored, and the lease continues. If the tenant fails to rectify the breach, you can terminate their lease in writing and issue them with an eviction notice, specifying the date by which they must vacate the property.

Once you cancel the lease, they are illegally occupying the property and can be evicted.

Hopefully you can now settle the matter with the tenant without having to go through the whole litigation process, but if not, this is the time to bring an eviction application in the High Court or Magistrates' Court. Best case is that the tenant pays you the outstanding amount and moves out when they are supposed to, but this is rarely the case. Going to court is the most expensive option but is often required to get results.

When granting an eviction order, the court will consider the tenant’s circumstances to determine if an eviction is just and equitable. The court gives special regard to the elderly, children, disabled persons, and households headed by women, and it exercises its discretion when ordering a date by which the tenant must vacate the property.

How much does it cost?

The cost of the eviction is linked to how quickly the matter can be finalised, and it is difficult to estimate the cost if opposed. If the matter is unopposed or settled, the cost can be as much as R20 000.00–R30 000.00 (or less if settled early), though these are mere estimates.

If the matter is opposed, the cost will depend on how long the process takes (something we unfortunately cannot estimate). We can ask the court for an order to include the legal costs incurred, but the costs awarded usually amount to a portion of the costs incurred, often not more than half.

How long does it take?

If the eviction application is unopposed, you can obtain an order in as little as 3-4 months, depending on how full the court roll is at that time. However, this timeline becomes unpredictable if the matter is opposed. You can mitigate this a little by making sure that the lease is properly cancelled without delay.

Can I recover arrear rent?

Arrear rent is often sacrificed as part of a settlement to ensure that the tenant vacates the property as soon as possible. This is why it is important to take action early before arrears get out of hand.

If you want to recover the arrear rent, you will possibly have two claims against the tenant in respect of rent. The first is based on the contract and includes arrear rent and interest on arrear rent. The second is a claim for damages, calculated as the value of the rent you lost after the agreement was cancelled up to the date of eviction.

A claim for the arrear rent can be done as a separate action which is issued at the same time as the eviction application and under the same case number. This action can contain an automatic rent interdict which prevents tenants from removing their possessions from a property. These possessions then serve as security for arrear rental or damages, and the sheriff will be able to sell these once a judgement is granted in your favour.

How can I make this process less painful?

Using a competent attorney to attend to your eviction matter will save time and money – any misstep along the way may cause costly delays. The right attorney will also serve as a barrier between you and the unlawful tenant, reducing the emotional toll caused by such an unfortunate situation.

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