How and When to Legally Evict Tenants.

Renting out a residential property is a great source of income, if managed correctly.

But, even with the most stringent checks and approval processes it’s still possible to end up with a bad tenant – a tenant that then needs to be evicted. “The eviction process is time consuming and needs to be done according to the letter of the law, if the landlord doesn’t want to face some sort of legal action further down the line”, advises Bruce Swain, MD of Leapfrog Property Group.

Reasons to Evict

Essentially there are three instances in which an eviction becomes necessary (and legal); when a tenant damages the property, defaults on rent or, uses the property for anything other than what was agreed to in the rental contract”, explains Bruce Swain.

While it can be tempting to change the locks for example this will be seen as an unlawful eviction as a landlord is not empowered to evict tenants themselves – legal procedure must be followed.

NGL Attorneys also emphasises that the reason for the eviction has to be valid under PIE, the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, which was established in 1998, ostensibly to prevent arbitrary evictions. “PIE sets out guidelines on the eviction process which must be adhered to”, says Swain, “In my experience the more detailed the rental contract the easier it is to follow through with the eviction. If this is a normal eviction then the following basic steps need to be adhered to:

The Basics of a Standard Eviction

·         The first step to take is to cancel the lease contract with the tenant, explaining why the contract is being terminated. It’s also important to note that the Consumer Protection Act (CPA) stipulates that the landlord must give the tenant a minimum of 20 business days’ notice to rectify the breach of contract, before the agreement can be terminated.

·         The landlord can then go to either a Magistrate’s court or the High Court to obtain an ejectment order / eviction application. The court will expect proof that the termination was valid and properly enacted (if the application is not opposed this could take as long as 8 to 10 weeks to be approved).

·         The tenant will be notified of the eviction order and be allowed to make their case. It is possible that the tenant will dispute the reasons for the cancellation of the lease, in which event a court case can ensue. Kwandokuhle Ncube, Candidate Attorney at Ramushu Mashile Twala Inc, explains that; “it is important to send this court application to the occupant and the municipality in time because the PIE Act states that they must receive it no less than 14 days before the date on which the parties to the application must be back in court”.

·         In many cases it is standard practice to provide the tenant with one month during which to find alternative accommodation before the sheriff will be lawfully entitled to evict the tenant.

“I cannot stress the importance of providing a sound rental contract, as well as clearly stating and documenting the evidence for a cancellation of a lease”, says Swain, “the eviction process is already costly and a lack of due diligence will not only drag out a very unpleasant situation, but can very well lead to a rejection of the eviction order or a lengthy and expensive court case”. www.eprop.co.za