The Ins and Outs of the Eviction Process
Having tenants in your apartment or house is not always the easy route to investment bliss, especially subsequent to the PIE Act [the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act No 19 of 1998 (“the Act”) being interpreted by the Courts as being applicable to leased properties.
The property market in South Africa has seen substantial growth over the last few years and while it has settled to more realistic levels, it is still considered a worthwhile investment. Many investors have bought second and third properties with the view to renting these to tenants, thereby having their bond covered, together with the advantage of steady growth of their investment.
However, having tenants in your apartment or house is not always the easy route to investment bliss, especially subsequent to the PIE Act [the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act No 19 of 1998 (“the Act”)] was said by the court to apply to leases. Eviction proceedings have become more lengthy and costly with the additional procedural steps that now need to be followed.
The first category of persons that may have to be evicted are those who have moved into your property without your consent. They are unlawful occupiers in the true sense, who cannot be evicted without a court order. Prevention is obviously better than cure and you should take all necessary security precautions to prevent this happening.
Refusal to Move
The second category of person you may find you wish to evict is someone that has legally been living in your property, for example, a former tenant, who now refuses to move out. There are two stages to the process should you wish to evict someone who was formerly a legal tenant of yours.
Firstly, if they are in breach of the agreement of lease, you will have to give them notice to remedy this, and only when they fail to remedy the situation can you cancel the lease. However, mere cancellation may not be enough. If they fail to leave, you will have to proceed to the second stage, that is, obtaining a court order for any amounts outstanding, damages suffered and eviction. An unlawful occupier, such as a squatter, on the other hand, need not be given any notice and the eviction process may be started immediately through the courts.
Steps to evict
Once you, as the owner, are in a position to start the eviction process it is important that you act quickly. Firstly, collate all the relevant documentation and information proving breach or subsequent cancellation of the lease. In the case of a tenant, you will need to give your attorney proof of ownership, the lease, the amount owed, the notice to remedy the breach and cancellation. Your attorney will, in addition, need details of the personal circumstances of those occupying your property, for example, whether there are any minor children, elderly or disabled persons and whether the household is headed by a woman. If, however, you have not instituted proceedings within six months of the date that occupation became unlawful, in the event of a lease, it will be necessary for you to substantiate whether alternative accommodation can reasonably be made available by yourself or any other third party including the various organs of state. And then, the Court process. Your attorney will then prepare a summons which will be served on the occupier of your property. Once the summons has been served the occupier has five court days to enter an appearance to defend.
If this is not done, the attorney may then apply to court to have a notice issued, which will then be served on the occupier by the sheriff, advising that within fourteen court days the occupier is to appear at court as you will apply for judgment by default. It will inform the occupier that they can obtain legal representation or go to Legal Aid to enable him/her to defend. This notice will also state the grounds on which you seek the eviction order. If the occupier defends the matter you may, within ten court days, apply for summary judgement stating that you do not believe the occupier has a valid defence. In addition, the notice referred to above will be served. The occupier will have to oppose this on affidavit.
If, as owner, you do not apply for summary judgement or if it is refused, the matter then goes to trial and the occupier is given an opportunity to file a plea setting out a defence ten days after having entered an appearance to defend or having successfully avoided summary judgement. Once this plea is received the matter can be set down for trial which can be between 6-12 months later.
An application can be brought, in lieu of the summons, and an eviction notice served together with the application. This limits the time from service to the court days to fourteen working days. The court may, however, grant postponements to allow the occupier to obtain legal representation or file affidavits. This means that it will take at least four weeks to obtain an eviction order even where the matter is undefended. If the matter goes to argument, this period may be anything between six months to a year.
Although you are able to claim for damages suffered while the occupier continues to occupy your property, clearly this is only worthwhile if the occupier has any assets or sufficient income to cover these costs. The court will also, when granting an eviction order, give the occupier an opportunity to leave your property within a specified period and should he/she fail to do so, will set a date after which the sheriff may evict them.
An undefended eviction can cost you, as owner, in excess of R5, 000 and an opposed trial approximately R20, 000. As this is a very specialised field your attorney must be intimately versed in the Act and the eviction process. If any of the procedural steps are not correctly followed, your case will simply be dismissed by the court or delayed even further.
Our courts in South Africa are supportive of granting eviction orders in favour of private landowners. However, the cost and time needed for these orders also need to be considered. As an owner, you can protect yourself by specifying in the lease an amount to be paid by the tenant should the tenant remain in your property despite a valid cancellation. You may also consider asking for a greater deposit or even some form of suretyship to minimise the damage suffered should you find yourself dealing with unlawful occupation.
Amendment to act
A proposed amendment to the Act means that if passed, the process relating to leased properties of an eviction notice being issued and served will be done away with, limiting the time and costs involved in obtaining an order. Considerations of the personal circumstances of the occupiers and whether they have alternative accommodation will also no longer be required.
About the author: DEIRDRÉ OLIVIER is a director of Fairbridges Attorneys and specialises in Property and Family Law. Please note that this overview does not constitute legal advice as each case depends on its own particular facts. This article was brought to you by Fairbridges Attorneys. For more information visit www.fairbridges.co.za or call Cape Town: (021) 405-7300 Johannesburg: (011) 268-0250
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