Eviction Guidelines

1. Initial Notice: The first step in the eviction process is to issue a notice of breach or cancellation to your tenant. To avoid delays, ensure the proper cancellation of the lease agreement and issuance of the correct notice. For a month-to-month agreement, a calendar months’ notice is required, while a fixed-term lease agreement requires 20 business days’ notice in accordance with the Consumer Protection Act.

2. Minimize Confrontation: To prevent unnecessary contact or confrontation with your tenants, it is recommended to have the Sheriff serve your notices. The Sheriff, as an officer of the court, can provide a Return of Service as evidence. Additionally, it is advisable to send the notice via email and WhatsApp to eliminate any ambiguity regarding receipt of the notice.

3. Legal Framework: Evictions are governed by the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE), which applies to residential housing. It is important to note that holiday and business accommodation are not subject to PIE. The property owner or person responsible for the property may initiate the eviction process. Understanding the entire eviction procedure and adhering to each required step is crucial, as there are no shortcuts.

4. Arrear Rental vs. Eviction: While eviction applications may include claims for arrear rental, the purpose of the eviction is to lawfully remove the tenant, not to recover arrears. Recovery of overdue rent is a separate legal process that must be pursued separately.

5. Avoid Forceful Eviction: You are not permitted to carry out a forceful eviction. Even if your tenant is unlawfully occupying the property, they still control it until a court orders eviction. Engaging in self-help actions, such as cutting utilities, changing locks, or preventing access, could lead to a Mandament van Spolie application being filed against you. This application requires proof that the tenant was wrongfully deprived of peaceful possession without consent, albeit an unlawful occupier.

6. Know Your Tenant: It is essential to be fully aware of who occupies your property. Maintain a record of all individuals, including their children, living on the premises and gather as much detail as possible about your tenants for the eviction application. Providing comprehensive information will enable the court to make a fair and equitable decision, considering all relevant factors, including how long the unlawful occupier and their family have resided on the property.

7. Eviction Process: The eviction application follows a two-step process: First, the Section 4(1) main application is filed. Then, a Section 4(2) notice must be served to all occupiers at least 14 days before the main application, informing them of the proceedings.

8. Notice Requirement: You cannot commence the eviction process without serving the necessary notices. The only exception is in cases where there is an immediate risk of significant harm or damage to people or property if the unlawful occupier is not evicted. While urgent eviction orders are possible, they are granted only under exceptional circumstances. These orders are typically issued on an interim basis, meaning further steps must still be taken to finalize the eviction.

9. Rental Statements and Receipts: Ensure that you send monthly rental invoices and statements to your tenant. Tenants are entitled to written receipts for any payments made. These documents can serve as evidence in your eviction application and help avoid disputes over rental amounts.

10. Adherence to Lease Terms: It is critical to fully understand and comply with the terms of your lease agreement. Deviating from these terms could lead to unnecessary complications and delays in the eviction process. Additionally, you may inadvertently create agreements or obligations that could affect the outcome of your case.

Eviction procedures can be complex and intimidating. It is advisable to seek professional assistance to navigate this process effectively. Please contact our firm if you require any support with your rental issues.