Evictions from Residential Property

In order to evict an unlawful occupier from residential property, the owner or lessor of the property needs to obtain a court order authorising the eviction.

A court order will only be granted if the procedure prescribed by Sections 4 and 5 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (the Act) have been complied with.

The primary purpose of the Act is to protect both occupiers and landowners by providing for the prohibition of illegal evictions on the one hand and procedures for eviction of unlawful occupiers on the other.

Contrary to popular belief, 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 by a competent court, and it 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.

This article serves to outline the process to be followed to obtain an eviction order:

1) Termination of lease

Firstly, it must be established whether the lease agreement has come to an end, whether by effluxion of time (ie expiry of the lease period), or 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, but the tenant remains in occupation of the property, without the consent of the landlord. The tenant has no right to occupy the property, and is therefore an unlawful occupier.

2) Eviction application

Once it has been established that the tenant is in unlawful occupation, then the next step is to make application to court for an eviction order.

The application will be supported by an affidavit deposed to by the lessor setting out the grounds for seeking an eviction order. It is important that the affidavit contains reference to the notice in terms of Section 4 of the Act, which will set out details of the date of hearing of the application and the other prescribed contents. Although the Act prescribes the content of this notice, it has been held that as long as the notice achieves the general purpose contemplated by the Act and the Rules of Court, the fact that the notice does not strictly comply with such provisions is not necessarily fatal. This notice needs to be authorised by the Court prior to it being served on the unlawful occupier, which requires an ex parte application (which means this is an application without notice to the other party)

Once the notice has been authorised, the Sheriff of the Court is required to serve the application and notice on the unlawful occupier as well as on the relevant Municipality at least 14 days’ prior to the hearing.

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 onus is on the unlawful occupier to inform the court of any special circumstances which may be relevant for the court to consider when deciding the matter. The court is required to have special regard to the rights of elderly, children, disabled persons and households headed by women. 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 by that date, then the Sheriff will be authorised to remove them from the premises. The Sheriff is then empowered by virtue of this order, to evict the tenant by force if necessary.

3) Service of Order

Once the order has been granted, it still needs to be served on the unlawful occupier by the Sheriff, who will explain the contents and effect of the order, in particular the date by which the unlawful occupier must vacate the premises. If the unlawful occupier thereafter fails to comply with the order, then the Sheriff will need to be instructed to carry out the eviction.

As can be seen from the above, it is important to obtain proper legal advice before evicting a tenant to ensure that the correct procedure is followed in order to avoid any lengthy, costly and ultimately frustrating delays.

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