Eviction – when can you evict a tenant?

The eviction process protects tenants, but landlords still have rights, even during the festive season

You don’t want to make your tenants homeless over the festive season, but if they fail to pay rent you are entitled to start the eviction process.

Ah…the festive season. Time for beach holidays, road trips, and long, lazy lunches. But it’s also a time of overspending and overconsumption. When the finances don’t quite stretch to the seasonal indulgences, tenants may renege on their obligation to pay rent. If you’re filled with goodness and mercy you may overlook this…for a while. But when it hits your bottom line you have a right to take action, all within the law.  A tenancy agreement is a contract. There are contractual rights and obligations on both parties. To protect your asset, you may have to initiate the eviction process.

The eviction process explained

It’s called a process for a reason. There are multiple steps involved and you must follow them in order. If you do not, you could find yourself in trouble with the law. Rental housing legislation is covered by several acts: the Rental Housing Act (and Rental Housing Amendment Act 2014), the Prevention of Illegal Eviction Act – PIE, and the Consumer Protection Act – CPA. Where the provisions of one are more generous, i.e. offer more protection to the tenant, that act prevails. In most cases the CPA has the last word. Eviction is a legal process that must be conducted via the courts and requires an eviction attorney. A landlord cannot evict a tenant without going through due process of law. 

How to evict a tenant

Assuming there is a written lease agreement in place (and even if there is not – see Verbal Lease Agreements), a breach of the conditions of the lease is sufficient cause to cancel the lease. The most common cause of lease cancellation is rent arrears. While there are circumstances that might invite you to exercise leniency, e.g. your tenant has lost their job, if you are faced with non-payment of rent purely because they have overspent at Christmas, you may be less inclined towards patience. But be aware that the law is particularly sympathetic to vulnerable people, such as children, the elderly, disabled people, or woman-headed households.

Cancelling a lease

You must give the tenant notice of the breach and a chance to rectify it…in the case of rent arrears an opportunity to make good the rent due. This is done by way of a warning in writing, giving the tenant a specified amount of time in which to remedy the breach. The time frame will be determined by the terms of the lease. If not specified, it will be 20 working days, in accordance with the CPA. If there is no written lease, the landlord must give a full calendar month’s notice. If the tenant pays up (and does not repeat this breach month after month), the matter is finished and harmony is restored.

However, if the breach is not remedied, the next step is to serve a letter of cancellation on the tenant. With luck, the tenant vacates the property at the end of the notice period. If so, you are free to find another tenant – hopefully one who can pay the rent! However, should the tenant disregard the lease cancellation, you may decide to start the eviction process. At this stage an eviction lawyer is required.

Next step – eviction 

You must apply to the court to have an eviction notice served by the sheriff on the tenant – who is now considered an unlawful occupier rather than a tenant. A court date is set and a deadline given for filing an opposing affidavit (if the unlawful occupier wants to oppose the eviction).

In court, the order will either be granted or the case will be postponed for further fact-finding. In the case of vulnerable individuals, the court may wish to be satisfied that the unlawful occupier can find alternative accommodation and/or that you have behaved fairly and reasonably throughout.

If the court is satisfied that the case for eviction is sound, the tenant/unlawful occupier will be given time to vacate the property. Only if, despite this process, they fail to vacate the property within the specified period, will the sheriff will be authorised to remove them and their belongings from the property. The cost of this will be borne by the tenant. You may not change the locks, physically remove personal property, or behave in a threatening way toward the tenant, however recalcitrant the tenant may be. Only the sheriff may take any physical action against the tenant.

Legal advice is essential

If you want to evict a tenant, you need legal representation by an experienced attorney. You can issue a notice of lease cancellation yourself, but expert advice is strongly recommended, to ensure you comply with all rental housing legislation. The law is partial to the rights of tenants, given the abuses of the past, and it is easy to fall foul of your obligations as a landlord without realising it. Simon Dippenaar and Associates, Cape Town eviction lawyers, now in Johannesburg and Durban, are specialists in rental housing law and will safeguard your rights, while also ensuring your tenants are treated fairly and with dignity. Contact Simon on 086 099 5146 or email simon@sdlaw.co.za.