An eviction is a legal process whereby a land owner (landlord) is restored with possession of their property from an inhabitant (tenant or occupier) who is in illegal occupation. In South Africa, the process differs with respect to tenants in residential properties and those leasing property in the commercial sphere, but in both scenarios an eviction can only be carried out with an Order of Court.
For commercial tenants, there are comparatively fewer hurdles to clear on the part of the landlord. In order to be successful, a landlord only needs to show that the tenant or occupier in question is on the premises unlawfully in order to be entitled to an order for eviction.
Here are some practical examples of a commercial tenant being in unlawful occupation:
- A tenant is in arrears. The landlord demands the outstanding amount but the tenant fails to pay. The landlord then writes to the tenant and cancels the lease but, despite this, the tenant fails to or refuses to vacate. This tenant is then in unlawful occupation.
- The tenant’s lease comes to its natural end and no option to renew is exercised by either side. The tenant still wants to remain in the premises but the landlord does not want to enter into a new lease with the tenant. If the tenant refuses to move, then this tenant is in unlawful occupation.
- A tenant sells his business and vacates but unbeknownst to the landlord, the new owner moves in to the premises. This new business owner does not have a lease with the landlord. This new tenant is in unlawful occupation. (The landlord may choose to then enter into a lease with this new tenant but the landlord is under no obligation to).
If a landlord can successfully demonstrate to a Court that the tenant is in unlawful occupation of the premises, the landlord will be entitled to an order for “ejectment.” The Clerk of the Court then issues the appropriate Warrant, and for the Sheriff serves it on the tenant and carries out the physical eviction process of removing the occupants and their property and changing the locks.