Written by: Eugene van der Walt | Afrikaanse weergawe
You gave notice. The lease expired. Your tenant is still there. This is one of the most frustrating situations a landlord can face and the law is more on your side than you might think, as long as you follow the correct process.
First Things First: You Cannot Do It Yourself
No matter how long the tenant has been in arrears, how badly they have damaged the property or how many notices they have ignored, you cannot change the locks, remove their belongings or cut off water and electricity to force them out. Doing so is an offence under the PIE Act and can result in criminal charges against you. The only lawful way to remove an unwilling occupier is through a court order.
What Is the PIE Act?
The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act came into force in 1998. The Act applies to all residential properties, including formal housing, informal settlements and rented accommodation. It covers not just squatters but any tenant who stays beyond the end of their lease or after it has been lawfully cancelled.
The Eviction Process, Step by Step
Getting a tenant out lawfully involves several steps and cannot be rushed, but it is a well-trodden path if handled correctly.
- Before you can apply to court, the tenancy must be properly terminated. This means giving the correct notice period as set out in the lease agreement or, if none is specified, the period required by the Rental Housing Act. If the tenant is in arrears, a breach notice must first be given with a reasonable opportunity to remedy the breach.
- Courts look favourably on landlords who made genuine efforts to resolve the matter first. A written request to vacate, sent after the lease has been cancelled, shows good faith and creates a paper trail.
- The eviction application is brought in either the Magistrate’s Court or the High Court, depending on the circumstances. Special rules apply where the occupier is a vulnerable person such as an elderly resident, a child or someone with a disability.
- The PIE Act requires that proper notice of the hearing be served on the occupier and on the municipality at least 14 days before the court date. This step is often the reason applications are delayed or dismissed: if service is defective, the court will not grant the order.
- Attend court. The matter is argued before a judge or magistrate, who must be satisfied that it is just and equitable to grant the eviction. The court will consider how long the person has been in occupation, what their personal circumstances are and whether suitable alternative accommodation exists.
- Enforce the order. Once granted, the sheriff of the court executes the eviction. You may not do it yourself even with a court order in hand.
How Long Does It Take?
An uncontested eviction typically takes between six and twelve weeks from the date the application is launched, depending on the court’s roll and how quickly service is effected. Contested matters can take significantly longer. This is why early legal advice matters: the sooner the process starts, the sooner it resolves.
What About Rent Arrears?
An eviction application deals with occupation only. It does not automatically recover the arrears owed to you. A separate claim for unpaid rent and damages must be pursued, either in the Small Claims Court for amounts up to R20 000 or in the Magistrate’s Court for larger claims. If the tenant has left without paying, a default judgment and warrant of execution against their assets may be your best remedy.
Van Der Walt and Associates Inc assists landlords and property owners with evictions, lease disputes and rental recovery matters. Contact us for an initial consultation.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.