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How to evict a tenant without being sued

Follow these 10 dos and don’ts for eviction and avoid litigation

We often hear from clients: “I need to evict my tenant. But I’m worried I’ll be sued.” While we’re nothing like the US in terms of readiness to sue, society is becoming more litigious (which means “tending to take legal action to settle disputes”). The past year has been hard on everyone, and landlords and tenants alike have found themselves in financial difficulties. If your tenant is in rental arrears, with little possibility of rectifying the breach, you may unfortunately need to evict them and replace them with a paying occupier. And it may be in the tenant’s best interests to find somewhere more affordable. But no one wants to leave their home. And rental housing legislation in South Africa protects tenants as far as possible. So worries about lawsuits are not unfounded. Here’s how to evict a tenant without being sued.

Image depicting a distressed man dealing with an eviction

A word about lockdown

Firstly, it’s important to note that under the Disaster Management Act Alert Level 3 regulations, “A person may not be evicted from his or her land or home or have his or her place of residence demolished for the duration of the national state of disaster unless a competent court has granted an order authorising the eviction or demolition.” So right now you must be patient.

However, you are permitted to apply for an eviction order, which can be granted. But it will be suspended until the national state of disaster is lifted, or when the rules otherwise allow. In exceptional circumstances, the court may allow the eviction to go ahead before then. See “Evictions under the ‘adjusted’ Alert Level 3 regulations” for a full explanation of what is permitted.

How to evict a tenant without being sued – follow the correct eviction procedure

There is a legislated process for tenant evictions. It is grounded in fairness, equity, and just treatment of all parties. Tenants have rights, and so do property owners. To protect the rights of all, the Rental Housing Act, Rental Housing Amendment Act 2014, Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 1998 (PIE), and Consumer Protection Act – CPA all contain conditions that must be met before an eviction can proceed. As well as things you must do, there are things you must NOT do. Here is a simple list of dos and don’ts.

DO:

  1. Serve notice on your tenant of the breach of the lease agreement and give them the opportunity to rectify the breach.
  2. If the breach is not rectified in the specified time (governed by legislation), terminate the lease contract and give a date to vacate.
  3. If the tenant fails to vacate the premises, give notice to the tenant of your intention to evict through the courts.
  4. Apply to the court to have a tenant eviction order issued to the tenant.
  5. The court will issue the tenant eviction order to the tenant 14 days before the court hearing. You do nothing at this stage.
  6. A court hearing takes place. The tenant has the opportunity to put forward a defence. You still do nothing.
  7. If the defence is valid, a trial date is set. You contact us for assistance with the trial.
  8. If there is no valid defence, a warrant of eviction is issued to the sheriff, authorising them to remove the tenant’s possessions from your premises. You do nothing.
  9. Either the trial begins or…
  10. The sheriff arrives to remove the tenant’s possessions. You do not move the tenant’s property yourself.

DON’T:

  1. Change the locks.
  2. Cut off the electricity, gas or water.
  3. Physically remove tenant property.
  4. Behave in any way that could be interpreted as threatening or abusive.
  5. Try to shortcut the procedure.
  6. Bribe the tenant to vacate.
  7. Send “heavies” around to intimidate the tenant.
  8. Tell the tenant they must move out temporarily so you can carry out maintenance or renovations.
  9. Make the property uninhabitable in any way (e.g. by not repairing a leaking roof or broken lock).
  10. In any other way take the law into your own hands.

How to evict a tenant without being sued…or going to jail!

If you follow the “dos” – in other words the correct eviction procedure – your tenant will not have any grounds for a lawsuit. No attorney will take their case. If you commit any of these “don’ts”, you could wind up not only being sued in the civil courts, but prosecuted in a criminal court of law. Many of these actions are illegal.

Let us keep you on the right side of the law

Whatever the grounds for eviction, you must act within the law. Cape Town law firm Simon Dippenaar and Associates are expert eviction lawyers who will ensure the correct procedures are followed every step of the way. We will assist with eviction notices and court appearances to secure a satisfactory outcome. Call us on 087 550 2740 or email sdippenaar@sdlaw.co.za.

Further reading:

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Simon Dippenaar | SD Law Cape Town

http://www.sdlaw.co.za

Cape Town attorney Simon Dippenaar has a BBusSc LLB degree and Professional Diploma in Legal Practice from the University of Cape Town, and is an admitted attorney of the High Court of South Africa. He is the founder and director of private legal practice, Simon Dippenaar & Associates, with offices in Cape Town and Gauteng representing South African and international clients.

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Disclaimer

The information on this website is provided to assist the reader with a general understanding of the law. While we believe the information to be factually accurate, and have taken care in our preparation of these pages, these articles cannot and do not take individual circumstances into account and are not a substitute for personal legal advice. If you have a legal matter that concerns you, please consult a qualified attorney. Simon Dippenaar & Associates takes no responsibility for any action you may take as a result of reading the information contained herein (or the consequences thereof), in the absence of professional legal advice.