The rules and laws regulating evictions in South Africa are complex and covers a wide variety of rental situations, each requiring specialised knowledge for the different types of letting.
Commercial Properties typically include Retail Space, Business Premises and Properties used for economic purposes
The same Landlord-Tenant laws apply as for the letting of Commercial Properties and other non-residential leases
The PIE Act applies to Residential Lease Agreements, which makes it fundamentally different from Commercial Letting
The rules of the body corporate needs to form part of the agreement when renting out Sectional Title properties
The term Eviction Notice refers in fact to US law. In SA we have what is called a Section 4(2) notice served by the Court on Illegal Occupiers and the relevant Municipality in terms of the PIE Act.
Evict a Tenant
The decision to evict in a particular scenario develops over time and depends on the tenant’s response and behaviour during the eviction process.
Control remains in the hands of the landlord, even if the situation changes and the tenant decides to pay the rental to continue with the lease.
If the tenant still remains in breach after the required period, the landlord can either opt to uphold the lease agreement and claim the rent, or cancel the agreement and proceed with the eviction process.
You’re not alone…
Is your tenant misbehaving? Don’t feel alone. Tenants who paid in full and on time has dipped substantially from the end of 2015 to the beginning of 2017 according to TPN.
72.52% in Q3 of 2015
66.08% in Q1 of 2017
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The Agent has a mandate to represent the Landlord in lease transactions as set out in the mandate. Typically to find and manage tenancy in the Landlord’s property.
When a landlord undertakes to rent out property to a tenant, in exchange for payment, this relationship is governed by a written, verbal or tacit Lease Agreement.
If a tenant defaults on rental, the landlord is entitled to uphold the lease agreement and claim the rent while a claim for damages may also be instituted in respect of loss suffered.
The technically challenging and complex nature of eviction applications necessitates that attorneys specialise as expert eviction attorneys.
This could include any of residential property, retail property, industrial property, business complexes and other properties used for economic purposes.
Landlord and Tenant
The parties to a lease agreement. The Landlord rents out property to a tenant who, in turn, is the person hiring the property from the Landlord.
Is your rental property RISK AVERSE?
It is often advisable to outsource the management of rental properties to reputable rental agents specialising in rental property management.
Income & Cash Flow
When verifying the tenant’s income and cash flow, bank statements could reveal how previous monthly rental amounts were paid.
Screening of a prospective tenant should ideally include the applicant’s personal details, bank statements, proof of income, and references.
Well managed rental properties and clear communication with tenants promote tenant contentedness and reduce the risk of tenant revolt.
Can a tenant be evicted if no written agreement exists?
Yes. Provided certain criteria are met for an agreement to exist whether verbal or tacit. For an in-depth look into Verbal and Tacit agreements and the implications on various situations including the soon-to-be-enacted Rental Housing Amendment Bill which will have far-reaching implications, see Residential Lease Agreements.
When is the ideal time to start eviction proceedings?
Depending on the grounds but preferably sooner rather than later. For example, immediately when the rent is overdue. The eviction process consists of several stages and although the process is started, it only becomes an ‘eviction’ later on in the process. At the outset, the defaulting tenant is placed on terms which should spell out the seriousness of the situation. This should set the ground rules for the remainder of the lease period. This preliminary stage, although critically important for the rest of the process, can be done without an attorney provided it is done correctly.
Can I handle the eviction proceedings myself?
Unless you are experienced in Court procedures and proceedings this is only theoretically possible and risky (like taking skydiving lessons in Greek – unless you speak Greek!). From our discussions with several experienced eviction attorneys it appears that layman’s-type Do-It-Yourself evictions are unlikely to be successfully executed without the assistance of a knowledgeable attorney. You can, however, with some guidance, start proceedings without an attorney like sending a Letter of Demand.
How do I know whether to claim rental and uphold the agreement or to evict?
Only if you have a good reason to enforce the agreement would that option be advisable. There are situations that could warrant rental claims but generally an eviction would be the appropriate course of action to take since you can claim for damages anyway (including forfeited rental).
Can a disabled tenant be evicted if in breach?
It is a common misconception that the court will not grant an eviction against children, elderly or disabled persons, or woman-headed households. Special consideration should however be given in these instances as to how these categories of tenants are best dealt with.
How can I save cost on an eviction?
The best way to save on costs in the event of an eviction is by avoiding mistakes from the start and handling it as efficiently and quickly as possible. The Residential Lease Agreements Course provides insight and advice on how to handle potential problems and cost-saving tips on preventing them in the first place.
What is an Eviction Letter?
As in the case of the Eviction Notice, the term Eviction Letter is sometimes used loosely by the public and media but refers in fact to laws in the US and elsewhere. In South Africa an Eviction Notice or Eviction Letter could be referring to either the Cancellation Letter in which the occupiers are notified that the lease agreement is cancelled and that, should they fail to vacate the premises, they will be evicted. Or, it could be referring to the Section 4(2) Notice in terms of the PIE act which is served by the Court on illegal occupants and the municipality.
Whether instructing an attorney, or initiating eviction procedures without one (legally or arbitrarily), the Residential Lease Agreements course is any letting agent or landlord’s best friend. It will enable a non-legal reader to understand and appreciate what the legal eviction of a tenant entails but also what the consequences would be of attempting to do so illegally.
The Eviction Process
The eviction process is technically complex and obtaining an eviction order for residential leases in South Africa requires some important steps.
1. Letter of Demand
In the first step, a tenant in breach is placed in mora (on terms) by the landlord or eviction attorneys with the help of a mora letter (LoD).
2. Cancel Agreement
After allowed period, should the breach not be remedied, the agreement can be cancelled by serving a cancellation letter on the defaulting tenant.
3. Eviction Application
Refusal of occupants to vacate the premises could initiate an eviction.This would be the start of Court proceedings against the tenant.
4. Eviction Order
The Sheriff of the Court will be authorised by the Court to attend to the eviction of the occupants through an eviction order.
If a tenant refuses to vacate the premises upon termination or cancellation of a lease agreement, the landlord’s only means of enforcing this right would be by way of a court order, in this case an eviction order. Only the Sheriff of the Court is authorised by the Court to attend to an eviction by ejecting unlawful occupiers outstaying their welcome, as directed by the eviction order.
How to evict a Tenant
A tenant in breach of the lease agreement is first placed on terms, allowing for a certain number of days to remedy the breach. After which, should the tenant still remain in breach, the landlord have the option to either uphold the lease agreement and claim the rent, or cancel the agreement and proceed with the eviction process.
Instead of the usual debt collection procedures, Sectional Title Body Corporates and Management Agents can now follow a process involving ‘utility disconnection action’ by approaching the High Court to recover the full amount owing as well as legal costs in only a few weeks.