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Safegaurding Yourself Against A Lengthy And Costly Eviction

One of the most common misunderstandings on the part of a landlord is that an eviction process is in line with the proverbial “a walk in the park”.  An eviction is time consuming, costly and extremely frustrating and even more so when you encounter a tenant who is well acquainted with the law and their rights.  With this in mind, it is crucial for a landlord to protect themselves and follow the correct procedures and avoid the consequences of a protracted eviction.

THE EVICTION LEGISLATIVE PROCESS

Evictions in South Africa are governed by the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (“PIE Act”) and no person may be evicted without a court order. It is against the law to forcefully remove someone from a property without a court order. This includes depriving a person of having access to their home by for example changing the locks when they are not home. In addition, attempts to remove a tenant using threats, intimidation or harassment opens the door for criminal action against being pursued against a landlord and will not be taken lightly if used as a defence by the tenant during the eviction proceedings.

HOW TO OBTAIN AN EVICTION ORDER

When an applicant applies to court for an eviction against a respondent in terms of Section 4(1) and 4(2) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 1998 (“PIE Act”), the court should grant an eviction order if the following requirements are met:

  1. You are the owner or person in charge of the land;
  2. The person occupying your property is an unlawful occupier; and
  3. You have reasonable grounds to evict the occupier. Alternatively, the person has no valid defence and it is just and equitable to evict the person.

Once the above is met, the court will then grant an order for eviction and determine the following:

  1. A just and equitable date on which the unlawful occupier must vacate the land, having regard to all relevant factors, including the period the unlawful occupier and his/her family have resided on the land in question;
  2. The date on which the eviction order may be carried out if the unlawful occupier has not vacated the land on the given date; and
  3. The court may also make an order for the demolition and removal of the buildings or structures that were occupied by such person on the land in question.

In the event of a municipality applying for an eviction, there rests a further obligation to have meaningfully engaged with the unlawful occupants and provided them with suitable alternative accommodation. This obligation however does not extend to private landowners.

HOW TO PROPERLY COMMENCE EVICTION PROCEEDINGS

Legislation prescribes that a landowner must provide the tenant or unlawful occupier with sufficient notice that they are to vacate. Usually, the court will accept thirty calendar days as sufficient notice. If the tenant or unlawful occupier has refused or neglected to vacate within the prescribed period provided in the “Notice to Vacate”, the landowner may proceed with the formal eviction application to court. Failure to comply with the “sufficient notice” requirement may result in the dismissal of your eviction application.

PROPER DOCUMENTATION

It is important that you have sufficient evidence to support your application for eviction. Therefore, a well-drafted lease agreement and proper communication with the tenant is crucial in proving that it is just and equitable to evict the tenant. These documents will ultimately form the basis of your eviction application so it is important to bear this in mind.

CONSULT AN EVICTION SPECIALIST AND AVOID FURTHER DELAYS, COSTS AND POSSIBLE LEGAL ACTION

Often landlords or tenants prefer to take matters into their own hands and fail to consult an attorney or take legal advice. Not only does this potentially aggravate the process, but it may be detrimental to a successful outcome. Adriaans Attorneys specialises in evictions, and we assist both landlords and tenants through a lawful and ethical eviction process.

Written by Zoe Abrahams

While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes.

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