What to expect of an eviction process
BY ELIZE LE ROUX
The thought of an eviction is every owner’s nightmare. The common word on the street is that it easily will cost R100 000.00 and will take a year if not longer for an eviction order to be granted. That is not even to mention the difficulties should it be a woman headed household or the occupants are elderly or disabled, or there are children.
Owners are then tempted to resort to illegal cutting of electricity, renovations or allowing other people into the unit, in the hope that this will force the occupants out of the property. These actions are illegal and can severely prejudice the legal eviction process as all Courts take a very dim view on people taking the law into their own hands.
This does not mean the law is on the side of the Tenant. It means the correct process should be followed as soon as possible. Once the tenant has breached the lease agreement, a letter of demand should be forwarded as soon as possible. In the instance of non-payment, not more than 3 days after payment was due, the letter of demand should be sent. In the event, the lease agreement is for a fix-term period, and one of the parties is a natural person the Consumer Protection Act 68 of 2008 (“CPA”) will be applicable. The consequence of the CPA being applicable is that the tenant has to be given 20 business days to remedy his breach, before the owner may cancel the lease agreement. Ideally, the letter of demand should be sent on such a date, that the 20 days expires in the same month. Should it only expire in the next month there is a possibility that the tenant will pay the demanded amount and not the new rental that is due. A new letter of demand will then have to be sent for the new outstanding amount.
The lease agreement can only be cancelled on day 21 one after the letter of demand was sent, and the tenants did not remedy the breach. Once the lease agreement is cancelled, legal process will be instituted in terms of Prevention Of Illegal Eviction from and Unlawful Occupation Of Land Act 19 Of 1998 (“PIE Act”) at the Magistrate or High Court which has jurisdiction. It is important to note that the Rental Housing Tribunal does not have jurisdiction to grant an eviction order. The parties may enter into an agreement at the Tribunal that the tenants will vacate; however, this is not enforceable.
Ideally the process is instated via the application process in terms of Section 4(1) of the PIE Act. The application is supported by an affidavit by the Owner or the person in charge of the property. It is important that all the necessary allegations are contained in this affidavit to enable the Presiding Officer of the Court to make a ruling which is just and equitable. These facts include that the correct procedures were followed and that the occupants are indeed in illegal occupation, background and prejudice suffered by the owner and then addressing various factors that relate to the Tenant. In terms of Section 4(6) of the PIE Act the Courts has to consider the rights and needs of the elderly, children, disabled persons and households headed by women. Once these circumstances have been considered and it is found to be just and equitable to grant the order, the court will set a date when the Occupants have to vacate the property. Should the Occupants fail to vacate, the sheriff is authorised to remove the occupants from the property.
PIE Act has a unique process as it has a compulsory interlocutory process to authorise a notice as required in terms of Section 4(2). This notice which is to be authorised by the court will be served on the Occupants after the main application was served. The purpose of the Notice is to inform the Tenants again of the application, the reason for the application, of their rights and what they need to do if they want to oppose the application. The Court will not consider the eviction application should this notice not have been authorised and served at least 14 days before the hearing of the eviction application.
On the date of hearing of the eviction application, the court will grant the eviction order if it is satisfied that the requirements of the PIE Act was complied with and that no valid defence has been raised by the unlawful occupier. It takes approximately 12 weeks, should the occupants not oppose the application for an eviction order to be granted. This expected time is influenced by the Court hearing the matter, the time of year and whether the occupants oppose the matter.
In general, it is essential to make provision for the possible eviction of a tenant, either by keeping funds invested to use for legal fees or in having the services of a company that will help you with the eviction process. This is not because property is not a safe or sound investment but because things happen. It is further essential to use professionals that have experience in getting eviction order legally and not to partake in any illegal activities as you need someone to represent you that is on top of their game and get you that order as soon as possible.
Xpello was created to assist all landlords not just to save on legal costs but to ensure attorneys with the necessary expertise are appointed to attend to the eviction process and to help with all process before the eviction process. Xpello has no waiting period, and our clients do not have to go to court.