Residential housing eviction proceedings
In order to evict an unlawful occupier (lessee) from residential property, the procedure in terms of ss 4 and 5 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (the Act) must be complied with.
The main purpose of the Act is to protect both occupiers and landowners by providing for the prohibition of illegal eviction on the one hand and procedures for eviction of unlawful occupiers on the other.
The Act does not take away any of the landowner’s proprietary rights but merely prescribes the procedures to be followed before an eviction order can be granted. The Act delays the exercise of the landowner’s proprietary rights until the court has decided whether it is just and equitable to evict the unlawful occupier after considering all relevant circumstances.
Firstly, it must be established whether the lease agreement has come to an end, whether by cancellation due to breach by the tenant or by due notice given in terms of the lease. The tenant of the property must be an unlawful occupier meaning that the lease agreement has come to an end, yet the tenant remains in unlawful occupation of the property, without the consent of the landlord. Therefore, the lessee has no right to occupy the property, and is an unlawful occupier.
The first step would be to obtain the signed lease agreement from the client and details of the breach of the tenant.
Peruse the lease agreement, and in the event of breach of the lease by the tenant, pay close attention to the ‘Breach Clause’ in the written agreement.
The breach clause in the agreement usually stipulates the number of days that must be afforded to the lessee to remedy his or her breach.
If the lease is for an indefinite period of time on a month-to-month basis (for example), then notice in writing must be sent out with notice of the relevant notice period as prescribed by the lease or one calendar months’ notice (from 1 to the 30/31 of the month), as the case may be.
If the lessee fails to remedy breach and the lease has been cancelled, and the tenant remains in occupation of the premises, then proceed with the legal process in terms of the Act and the Rules of Court, without delay.
The summons may contain an automatic rent interdict to prevent the tenant from removing any of the lessee’s possessions from the property (once default judgment or summary judgment is granted).
Before a court can grant an eviction, it has to consider all the relevant circumstances and be in a position to rule that such an eviction is just and equitable. The owner approaches the court on the basis of ownership alone and the unlawful occupation. It is then the occupier who may rely on special circumstances and it is their duty to raise and present the special circumstances to the court.
The court may only grant the eviction after considering all the relevant circumstances and has a very wide discretion in ordering the date on which the unlawful occupier is to vacate.
The court order must clearly state on which date the occupiers must vacate the premises and, furthermore, state that if they fail to vacate the premises, the Sheriff will be authorised to remove them from the premises as of a specified date.
Generally, an eviction can be effected within three months from receipt of instruction. This time period, however, depends on whether the lease has been validly cancelled after the breach of the lease agreement and the date of eviction ordered by the court