What is an Eviction?
An eviction is the act of depriving a person of occupation of a property against their will. It involves any legal action that forces someone to leave a property they are unlawfully occupying, either by physically removing the person or their belongings, or by demolishing the structure they occupy.
When Can a Landlord Lawfully Evict a Tenant?
A landlord can evict a tenant if the tenant is considered an unlawful occupier. An unlawful occupier is a tenant who:
- Occupies the property without the landlord’s consent
- Continues occupying the property after a lease agreement has expired or been cancelled
- Remains on the property after the landlord withdraws previously given consent
- Occupies the property without any legal right to do so or is not considered a lawful occupier under any other law.
What is the Procedure a Landlord Must Follow?
Evictions in South Africa are governed by the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 1998 (PIE Act), which sets out lawful procedures for landlords and protects tenants from illegal evictions. Additionally, the Constitution guarantees the right to housing and stipulates that no one can be evicted from their home without a court order.
Under the PIE Act, landlords must follow specific steps to evict a tenant:
Step 1: Notice of Cancellation
Before beginning the eviction process, the landlord must cancel any consent given to the tenant. The cancellation must be in writing, and the tenant should be given at least one calendar month to vacate the property.
Step 2: Filing for Eviction in Court
If the tenant fails to vacate the premises, the landlord can proceed with an eviction application in the High Court or Magistrates Court where the property is located. The court will schedule a hearing.
Under Sections 4(1) and 4(2) of the PIE Act, this process involves two parts and will require legal assistance. Please contact us for help with this step.
Step 3: Serving Notice of the Eviction Hearing
Once the court provides a date for the eviction hearing, the landlord must ensure that the unlawful occupier(s) and the relevant municipality are personally served with written notice of the hearing. This must be done by the sheriff at least 14 business days before the hearing. The notice must include the date and time of the hearing, details of the eviction, and the occupier’s rights, including the right to defend themselves and access legal aid.
Step 4: The Eviction Hearing
Both the landlord and the tenant(s) must attend the court hearing. If the tenant fails to appear, the court may either postpone the hearing or proceed in their absence, potentially resulting in an eviction order. If the court grants the eviction order, it will specify the date by which the tenant must vacate the property. The landlord is not allowed to evict the tenant before this date, even if they disagree with the court’s decision.
Step 5: Enforcement of the Eviction Order
If the tenant does not vacate the premises by the court-ordered date, the landlord can approach the sheriff to enforce the eviction order, often with assistance from the South African Police Service.
Conclusion
For many landlords, evicting a tenant can seem costly, time-consuming, and complicated. However, with the right legal team, the process does not have to be overwhelming. For assistance with legally evicting a tenant, contact Macdecorney Attorneys Inc. today.
