The landlord/tenant relationship should be a mutually beneficial one – and in most cases, it is. The tenant gains a place to stay without the costs and hassles of ownership, and without having to commit to a very long-term financial agreement. The landlord in return benefits from being able to derive a regular income from their asset (the property) as a contribution to their bond payments and/or other expenses.
Like all relationships, however, things can go wrong. The most likely causes of tension between a landlord and tenant are a failure by the tenant to pay the agreed rental, or some other breach of the lease agreement (such as causing damage to the property). In these circumstances, it is natural for the landlord to want to replace the tenant with someone new – but it is not quite as simple as that.
Removing a problem tenant involves going through what is known as the eviction process – a procedure which contains several important checks and balances, and which is governed by legislation. The Constitution of South Africa also comes into play here.
The eviction process
Evicting someone from their home is a serious step, and not one to be undertaken lightly. Indeed, under the Constitution, a tenant can only legally be evicted if the landlord obtains a court order.
The most important piece of legislation here is called the PIE Act. The full name of the PIE Act suggests that it is more about protecting the rights of the tenant than those of the landlord: that is, the Prevention of Illegal Eviction from and Unlawful Occupation of Property Act.
The PIE Act sets out the specific steps required for a successful eviction, which can only be initiated when the tenant becomes an unlawful occupier as defined in the Act. When a lease expires, or the tenant breaches the lease agreement, they are considered an unlawful occupier. Only once this happens can the eviction process formally begin, and it has to be conducted according to the specific provisions of the PIE Act.
Three steps to eviction
When a landlord believes that their property contains unlawful occupiers (who could be squatters, as well as non-paying or destructive tenants), they must first withdraw the right or permission previously given to the occupiers.
As the landlord in such a case, you cannot simply force the occupier to leave, or make the property uninhabitable by cutting off utilities. The withdrawal of permission to occupy must be given in writing, and the occupier must be allowed a reasonable amount of time in which to vacate the premises.
Only after this has happened can the landlord apply to the local High Court or Magistrates’ Court for an eviction order. Once the relevant court has determined a date for the eviction hearing, this must be communicated in writing to the alleged unlawful occupier at least 14 working days before the hearing. The local municipality must also be informed in the same way.
At the same time, certain other information must be given to the occupier, such as the fact that they can defend themselves at the hearing.
On the day of the hearing, both landlord and occupier must be present, although the court can choose to proceed in the absence of the occupier. The occupier’s rights to oppose the eviction in court, and to be given adequate advance notice of the hearing, are protected by law.
Factors to be considered
Depending on the length of prior occupation, the court will consider various factors when deciding whether or not to grant an eviction order. These include the availability of alternative accommodation and the rights and needs of particularly vulnerable people, such as the elderly or children.
It is clear that the primary focus of the law is to prevent people being deprived of their homes without very good reason. At the same time, the court can and will grant an eviction order if it determines that this is warranted.
The impact of an eviction order
When an eviction order is granted by a court, it will include a date by which the unlawful occupier must leave. It will also specify the date on which the sheriff (an officer of the court) must evict the unlawful occupier if they still refuse to leave.
For more information on this topic, please do not hesitate to contact our Sales & Rentals team.
Disclaimer: Kindly note that the above article is merely for information, and is not intended to be comprehensive, to provide legal advice or to assist Community Schemes with the discharge of their fiduciary duties.
Solver is amongst the larger property managing agent companies in South Africa and have been managing community schemes effectively since 2005. High-rise sectional title buildings, Homeowners Associations, share blocks, apartments, we manage it all. For more information, please contact 010 822 2882. Solver Property Services has a team of experienced Property Managers / Managing Agents that can assist you.
