What landlords and tenants need to know about eviction
Nobody wants to be evicted. And it’s rare that landlords want to evict tenants. A healthy landlord–tenant relationship is a mutually beneficial situation where one party has a home to live in and the other enjoys an income from their asset. In an ideal world, no one would want to disrupt this peaceful scene. Unfortunately, sometimes a tenancy does not go smoothly, and the property owner is in the unhappy position of having to consider eviction. What do both landlord and tenant need to know about the eviction process and their respective rights?
What is eviction?
In its simplest sense, eviction is the act of expelling someone from a property. However, a landlord may not actually remove a tenant. Only the sheriff can do that. A landlord must follow a carefully defined procedure or risk breaking the law.
Eviction is not the same as cancelling a lease. Lease cancellation is the conclusion of a civil contract between two individuals, for a valid reason. Either party may cancel the lease, and the terms under which this can be done should be set out in the lease.
One reason a landlord may cancel a lease is a breach of the rental agreement, for example failure to pay rent or some infraction of the rules, such as keeping a pet when no pets are allowed. In this case, the landlord must give the tenant notice of the breach and a chance to rectify it. A breach in itself is not sufficient grounds for eviction.
Rental housing legislation and tenant protection
Rental housing in South Africa is addressed via several pieces of legislation: the Rental Housing Act and Rental Housing Amendment Act (RHA), the Consumer Protection Act (CPA), Prevention of Illegal Eviction Act (PIE), and the Extension of Security of Tenure Act (ESTA). These cover different aspects of the relationship and different situations. (For example, PIE is concerned with eviction; ESTA specifically looks at land tenure.) There is some overlap, especially between the Rental Housing Act and Consumer Protection Act, and tenants’ rights always default to the greater level of protection, where the provisions of two Acts differ.
If there is a breach of the rental agreement, the landlord must issue a warning to the tenant in writing, giving them a specified amount of time to remedy the breach. This time frame will be determined by the terms of the lease. If not specified, it will be 20 working days, in accordance with the CPA. If there is no written lease, the landlord must give a full calendar month’s notice. If the tenant rectifies the breach, the matter is finished and harmony is restored.
If the breach is not remedied within the designated time, the next step is a letter of cancellation served on the tenant by the landlord. The cancellation notice should include a date by which the tenant must vacate the premises. This is still not eviction. Eviction only occurs when the tenant does not vacate the premises in accordance with the lease cancellation.
If the tenant fails to vacate, the landlord is entitled to give notice of their intention to evict the tenant through the courts. The landlord applies to court for an eviction order to be issued to the tenant. The court then issues the eviction order to the tenant and the municipality that has jurisdiction in the area 14 days before the court hearing. At the hearing, the tenant has the right to put forward a defence. If the court considers the defence valid, a trial date is set. In the absence of a valid defence, a warrant of eviction is issued to the sheriff, giving authorisation for them to remove the tenant’s possessions from the premises. So, depending on the judgment, either a trial begins or the sheriff removes the tenant’s possessions from the property.
Even the most recalcitrant tenants have rights in the process. PIE provides for vulnerable people. If tenants are elderly, disabled, or women with young children, the court may allow extra time for them to vacate the property, to ensure they have time to find suitable alternative accommodation.
Landlords may not shut off utilities or other services or change locks, or in any way make a property uninhabitable. These acts amount to constructive eviction, which is illegal in terms of the RHA and could result in a fine or imprisonment of up to two years, or both.
How long does the process take?
If the eviction order is opposed, the case can drag on considerably. It can take from six to 18 months. Even if the eviction is unopposed, the court will want to ensure the occupier is given enough time to vacate the property and find alternative accommodation before allowing the sheriff to enforce an eviction order, particularly in the case of vulnerable tenants.
Tenant’s personal property
Tenants have a responsibility to restore the property to its original condition when they move out, and this includes removing personal property. However, tenants do sometimes leave unwanted items behind. While this may be deliberate – a desire to cause inconvenience out of resentment at the eviction, or just unwillingness to arrange disposal – it could also be unintentional. It’s not unusual for people, whatever the circumstances, to leave something behind in the stress of moving house. The landlord has a duty to try to track down the tenant. They must use any contact details they hold for the occupant and exhaust all possibilities. The landlord must be able to demonstrate that they tried in good faith to find the owner of the personal property.
For further information
Simon Dippenaar & Associates, Inc. is a law firm of specialist eviction lawyers in Cape Town, Johannesburg and Durban, helping both landlords and tenants with the eviction process. Contact one of our eviction attorneys on 086 099 5146 or firstname.lastname@example.org if you need advice on the eviction process.
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This article also appears on eviction-specialists.co.za
The information on this website is provided to assist the reader with a general understanding of the law. While we believe the information to be factually accurate, and have taken care in our preparation of these pages, these articles cannot and do not take individual circumstances into account and are not a substitute for personal legal advice. If you have a legal matter that concerns you, please consult a qualified attorney. Simon Dippenaar & Associates takes no responsibility for any action you may take as a result of reading the information contained herein (or the consequences thereof), in the absence of professional legal advice.