An eviction is a process whereby a land owner (landlord) is restored with possession of their property from an inhabitant (tenant or occupier), who occupies the premises unlawfully.
Here are some practical examples of when a tenant would be considered to be 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 moves out and decides to sub-let the premises to someone else, without the landlord’s knowledge or permission. This new tenant is in unlawful occupation.
In South Africa, the process is more onerous for landlords seeking an eviction order in respect of a residential premises and cannot be carried out without the authority of a Court, after considering all relevant factors.
There is legislation that governs the eviction of residential tenants. The Prevention of Illegal Occupation from and Unlawful Occupation of Land Act 19 of 1998 (commonly referred to as “PIE”) obliges a landlord to bring a specific type of application to Court which differs from usual court applications. For an application in terms of the PIE Act, the landlord must first approach a Court to get permission to issue and serve the application and only after this first step can the process get under way.
A Court will only grant permission for a landlord to issue an Eviction Application if the landlord can show, on its version, that the tenant or occupier is indeed in unlawful occupation of the process. (The courts have held that the landlord also needs to provide the Court with the personal circumstances of the tenant, but this is not always practically possible as the landlord’s information may be limited or incomplete).
If permission is granted, the Clerk of the Court issues the application and it is served by the Sheriff personally on the tenant or occupiers, as is required by the Act.
Aside from the stringent procedural requirements, the PIE Act provides that no person may be evicted from their home without a Court Order after a Court having considered whether such an eviction would be just and equitable in the relevant circumstances. Factors that a Court would consider in such an enquiry include:
- Whether there are any vulnerable members of society, such as children or the elderly, staying at the premises?
- Whether there is any alternative accommodation that can be found by the occupiers themselves, or provided by the local municipality?
- Whether the tenants are employed and in a financial position to secure alternative accommodation themselves?
- Any other relevant factors.
If an Eviction Order is granted, the Courts will usually afford a tenant or occupier a reasonable time to secure alternative accommodation. The amount of time is decided on a case by case basis. If they have failed to vacate the premises by the time that time period expires, the Sheriff will thereafter be entitled to evict the tenants or occupiers. As in the case of commercial evictions, 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.
An eviction application in respect of anyone’s home is a serious matter and the law places very strict requirements on any landlord wishing to institute such an application. It is best to seek legal assistance to ensure that the application is correctly made.