Tenant Eviction Process in South Africa
How to Evict a Tenant Legally From a Residential Property
It’s said that property is one of the best investments one can make. And, the idea of earning a passive income is something that many of us strive for. Few things in life are without risk, though, and one of the biggest risks in terms of leasing residential property to a tenant in South Africa, is them not paying rent and refusing to move out.
Here’s a simple explanation of the process involved in legally evicting that tenant from your premises. Should you wish to explore the options available to you, we invite you to contact us for an appointment.
Issuing a Letter of Demand
One can begin proceedings with a letter of demand. In some instances, the lease agreement will provide for a notice period to be afforded to the tenant in writing, which gives them a set period of time for them to remedy their breach of the lease and make payment in full of everything owed.
Even if this isn’t provided for in the lease, the hope is always that when a tenant receives a letter from a lawyer, they realise that there will be significant consequences for being in breach of contract, as prescribed by law. In accordance with the Consumer Protect Act 68 of 2008, the defaulting tenant is provided with a minimum of 20 business days in which to remedy the breach.
Often, simply receiving an official demand is sufficient to provoke a response from the defaulting tenant and an amicable resolution can be negotiated between the parties.
Cancellation of the Lease Agreement & Notice to Vacate the Premises
Where the letter of demand fails to have the desired response, and if the tenant persists with non-payment, an official notice of cancellation of the lease agreement and notice to vacate the premises is provided to the tenant. If the tenant thereafter remains in occupation, the court will need to be approached for an order authorising the eviction.
Application for Tenant Eviction Order
An application to the courts is made to issue an order to evict the tenant from a residential property. Because the process was historically open to much abuse and prejudice to indigent tenants, the court supervises the process, especially where parties are not represented by attorneys.
Application to be Served by the Sherif
A crucial factor to ensuring a successful eviction, is proper service of the application on the tenant by the sheriff. The sheriff would need to attend at the property to hand the documents to the tenant and if necessary, would have to attend after hours or on a Saturday.
The sheriff must ensure that the documents are handed to the tenant personally or to a person who can confirm that the tenant is a resident at that address. The sheriff is entitled to serve in any manner by which in the ordinary course the application would come to the attention of and be received by the tenant.
Hearing of the Eviction Application
Once you can prove to the court that the application has been brought to the attention of the tenant, the court can be requested to allocate a date for the hearing of the eviction application. The tenant is entitled to file papers opposing the eviction and is afforded their right to their day in court, so to speak.
In the absence of extenuating circumstances, the court is likely to order that the tenant must vacate your premises but will afford the tenant a reasonable period of time in which to do so. What is reasonable, will depend on the facts of each case and can be argued before the court accordingly.
The court can also be requested to make an order that the tenant make payment to you, of the amounts owed to you by virtue of their occupation of your property.
Eviction Applications Can Be Costly
As is the case with any litigation through the court processes, eviction applications can be a costly and lengthy exercise. In the absence of unusual circumstances, the court is likely to grant you the eviction, but recovery of the amounts due and legal costs is never guaranteed, and is certainly neither quick nor cheap.
An amicable and negotiated departure usually saves the parties significant further expense.
We invite you to Contact us for an appointment to discuss your options and how best we can assist you with securing your rights to your property.