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Evictions

As a property owner, the risk of a defaulting tenant and the eviction costs associated with removing the tenant from the property is ever present. Our firm has come up with a way to combat the risk of costly evictions

The terms of our offering are simple. Here's how it works:

  1. You enter into a retainer agreement with RC Smith & Associates for a fixed fee of R165.00 per month (vat inclusive), per property;
  2. In the event your property is unlawfully occupied by a tenant, our firm will represent you in a High Court eviction application without any further legal costs to you;
  3. You shall also not be liable for any advocate’s fees or sheriff’s fees-; and
  4. A three month waiting period applies and you have to remain fully paid up with your monthly retainer fee.

What is an eviction?

An eviction, also known as an ejectment, is when an illegal occupier of a property, such as a defaulting tenant, is forced to leave the property by the sheriff of the court acting in terms of a Court Order. No person may be evicted from his/her place of residence without a court order. The owner of a property, or person in charge of the property, may bring an application before court asking for the occupier to be evicted from the property. The procedure is provided for in the Prevention of Illegal Eviction from and Unlawful Occupation of Property Act and must be followed strictly.

When can an occupier be evicted from a property?

The occupier can be evicted from the property if he / she is considered an unlawful occupier and the court finds that it is just and equitable to do so.

An occupier will be considered an unlawful occupier, if any right, or consent, to be in occupation of the property has been terminated / withdrawn and the tenant continues to remain in occupation despite having received due notice to vacate the property. For example, an existing lease agreement between the landlord and the tenant will usually provide the tenant with a right to occupy the property. When the lease agreement expires, or is terminated by the landlord due to the tenant’s breach, and the tenant refuses to vacate the property, the tenant will be considered to be an unlawful occupier.

What is the procedure to evict an unlawful occupier?

It is important for the property owner to follow the procedure provided for in the Prevention of Illegal Eviction from and Unlawful Occupation of Property Act. The owner should, under no circumstances, take the law into their own hands. The steps to be followed in the event of a tenant breaching the lease agreement are:

  1. The owner serves notice to the tenant to rectify the breach. Usually this is a period of 20 business days or another period as specified in the lease;
  2. If the breach is not rectified, the owner can terminate the lease agreement;
  3. The owner should then notify the tenant that the lease agreement is now terminated, that the tenant must vacate the property, and if the tenant fails to do so that the owner shall approach the court for an eviction order;
  4. The owner then brings an application requesting an order to evict the tenant, which is served on the tenant, all other occupants, and the municipality with jurisdiction in the area;
  5. A further application is then brought asking that the eviction application be enrolled for hearing, either as unopposed or opposed (depending on the circumstances) and asking for the court to authorise notice to be given to the tenant and other occupants of the hearing date. The tenant and the municipality that has jurisdiction in the area must be given notice of the court hearing 14 days in advance;
  6. The court hears the application, at which time the tenant needs to prove a valid defence;
  7. If the application is successful, the court orders the tenant to vacate the property on a specific date; and
  8. If the tenant fails to vacate the property, a “warrant of eviction” is issued by the court to the sheriff authorising the sheriff to remove the tenant and his / her possessions from the premises.

What are the rights of an unlawful occupier?

The occupier has the right to receive timeous notice of the eviction hearing. The Act specifies 14 business days’ notice before the court date. Further, the occupier is entitled to appear before court and oppose the eviction application in person or with an attorney and, if the occupier cannot afford an attorney, the occupier has the right to apply for legal aid.

Considerations of the court before granting an order evicting the occupier:

The court will consider whether:

  1. the occupier is in fact an unlawful occupier;
  2. the owner has followed the procedure provided for in the Prevention of Illegal Eviction from and Unlawful Occupation of Property Act;
  3. it is just and equitable to evict the occupiers, after considering all the relevant circumstances, including the rights and needs of the elderly, children, disabled persons and households headed by women;
  4. if the unlawful occupier has been in occupation of the property for more than 6 (six) months, the court will also consider whether alternative accommodation has been made available or can reasonably be made available by a municipality, organ of state or an owner of property, for the relocation of the unlawful occupier

After considering the above and if the unlawful occupier/s has no valid defense, an eviction order may be granted by the court, which will specify the date on which the unlawful occupier/s must vacate the property and the date on which the sheriff must evict the unlawful occupier/s from the property, if s/he has not yet vacated the property on the date determined by court.

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Ralph Smith

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Mari Botma