If you own a property and, for some reason, you need the tenants or occupiers to vacate the property, then you would need to follow a process called eviction. Although it is not illegal to evict a tenant, it is often a long and complicated process that is governed by legislation. Evictions can only occur if there are legitimate reasons for it. In this article, we’ll look at what those reasons are, and the process to follow if you need to evict a tenant legally.
Legal reasons to evict tenants
While the South African law does seem to favour tenants, it is also clear that if a tenant does not keep their end of the bargain, a landlord is within their rights to evict a tenant. A detailed, written lease is crucial. This is the contract between the landlord and the tenant. If the tenant goes against – breaches – anything in the contract, you can start an eviction process. Legal reasons for evicting tenants include:
- If a tenant does not pay the rent in full, on time, or at all – rental arrears
- If a tenant does not move out of the property at the end of the lease agreement (in other words, when the lease terminates and is not renewed)
- If a tenant is involved in any form of illegal or criminal activity
- If a tenant damages the property (this does not include wear and tear - damage that can happen in the normal use of the property)
The standard eviction process in South Africa
We will focus on a normal eviction process, but it is useful to know that you can get an urgent eviction if you can prove it is harmful or dangerous to you if the tenant stays in the property. Once you have established that your tenant has breached the lease agreement and/or if any of the other legal reasons mentioned above apply, then you can start the eviction process.
Step 1: Send a letter of demand
Before you start the eviction process, send a formal letter to the tenant explaining that they have broken your agreement and ask them to remedy the breach (i.e. fix it) within a stipulated timeframe (usually within 20 business days). In this letter, you should also mention that if the tenant doesn’t address the problem, the lease agreement will end. If the tenant does not remedy the breach within the timeframe, you can terminate the lease agreement and start the eviction process.
Step 2: The court process
If the tenant does not vacate the property after the lease has been terminated, you will then need to apply for a court order to legally evict the tenant who is illegally occupying your home. There are five steps in a legal eviction process if there is a court hearing. These include:
- Notify the tenant that you are going to court to apply for an eviction order.
- Apply to the court for an eviction notice against the tenant and for a court date.
- Fourteen (14) days before the court date, the messenger of the court delivers the eviction notice to both the tenant and the local municipality.
- If the tenant has a valid reason for not being evicted, the case will go to court.
- If there is no legal reason for the tenant not to be evicted, the court issues a warrant of eviction to the sheriff. This authorises the sheriff to take the tenant’s possessions off your property. If the eviction application is unopposed, it takes between eight and ten weeks from the application until the eviction is granted.
Common Eviction Mistakes
- An eviction is not a DIY job. If something goes wrong or you don’t follow the correct legal procedures, it could end up costing you both in legal fees as well as months of lost rental income due to the lengthy eviction process.
- If you've started the eviction process, do not accept any money from the tenant. This will set you back and delay the process.
- Do not rush the process: wait the full amount of days as set out in all the correspondence.
- Do not throw the tenant and their furniture out of the house before you have a court judgement.
- This could be seen as an infringement on their privacy and will likely cause delays in the court proceedings.
- Do not cut off the electricity or water or change the locks of the house. By law – the Rental Housing Amendment Act – this is not allowed. If you do, you could go to jail.
- Finally, do not hound or harass the tenant because they could take legal action against you.
Legislation protects tenants from illegal evictions.
It’s important to understand the law that governs the rights and responsibilities of both property owners and their tenants. South Africa’s Constitution explicitly says that “Everyone has the right to have access to adequate housing…”. It goes on to say that no legislation may “permit arbitrary evictions” and if anyone is either evicted or their home demolished, this can only happen with an order of the court. There are four laws that impact evictions. They spell out a range of important issues for tenants and property owners (landlords).
The Prevention of Illegal Eviction from Unlawful Occupation of Land Act (PIE Act) and the Extension of Security of Tenure Act (ESTA).
The PIE Act bans unlawful evictions in urban areas (i.e. towns, cities, and villages). It also sets out the process that landlords must follow so that they can evict a tenant who is occupying their property illegally. ESTA, on the other hand, governs farmland and land that is zoned for agriculture and prevents the unlawful eviction of people who are legal tenants and especially labour tenants as set out in the Labour Tenants Act.
Rental Housing Act and Rental Housing Amendment Act (RHA)
The RHA sets out how the relationship between landlords and tenants should work. Importantly, it also includes ways for resolving disputes between landlords and tenants through the Rental Housing Tribunal. This means that if a tenant has a dispute with you, they may approach the Tribunal. Similarly, if you (or the tenant) disagree with the tribunal’s decision, you may appeal it. Each province has a Rental Housing Tribunal, and every municipality must have a rental officer. This act is very specific about the rights and obligations of tenants and landlords. It is a criminal offence for a landlord to contravene this act which can be punished with either a fine and/or a prison sentence.
The Consumer Protection Act (CPA)
The CPA protects all consumers’ rights and nine are listed in the act. Of these, five are specifically relevant to tenants. These are the rights to privacy, choice, disclosure of information, and to fair and honest dealing as well as to fair value, good quality, and safety.
A last word
The eviction process is a tricky thing to go through, that’s why tenant selection is crucial to rental success. To ensure that you safeguard yourself and your investment, involve a rental professional from the start to give yourself the best opportunity of securing a tenant who you’ll hopefully never need to evict. Your nearest RE/MAX office can help.
Have more unanswered questions? Here are some related questions – and answers – that might help…
How long does the eviction process take in South Africa?
If a tenant does not defend or contest an eviction, the process can be quite quick - probably around three weeks. However, if the eviction goes to court, it can take a lot longer - up to eighteen months.
How much does an eviction cost in South Africa?
It’s difficult to say how much an eviction will cost, especially if it goes to court. Either way, you will have to prepare for court costs, which include the cost of the eviction notice and for the sheriff to carry out the eviction order. In addition, you will need to factor in your attorney’s fees. Assuming you are successful, and that your tenant has the resources, you can sue them for these costs.
How do I get rid of a tenant without going to court?
If, when you send the tenant a formal letter, they do not pay what is due or correct the breach of contract by the time your deadline has expired, you can cancel the lease and ask them to move out. If the tenant moves out, you both avoid going to court and additional legal costs.
