Guidelines for Landlords and Managing Agents



EVICTING A DEFAULTING TENANT GUIDELINES FOR LANDLORDS AND MANAGING AGENTS What you need to know: • for several years, it has been the law that a landlord may not lawfully evict a tenant from his premises unless he obtains a court order to authorise the eviction • in August 2002, the Appeal Court ruled that the Prevention of Illegal Eviction From and Unlawful Occupation Of Land Act 1998 (previously applied only to illegal squatters) must also apply to evicting tenants • the effect of this ruling is that a landlord must now follow the procedure set out in the PIE Act, which may, in some cases, take longer (and cost more) than the old procedure usually did. What you need to do if your tenant defaults on payment: • send the tenant a letter of demand - if the lease contract contains a clause dealing with this situation, make sure you follow its terms • if the tenant still fails to pay, send him a letter cancelling the lease and ordering him to move out of the premises - again, follow the terms of the lease contract and make sure that you give the required period of notice • if the tenant refuses to move out of the premises, instruct your attorney to apply to the local magistrate's court for an eviction order in terms of the PIE Act • your attorney must draw up the necessary papers and submit them to the court • the court will set the case down for a hearing • fourteen days before the hearing, the court must give the tenant and the local municipality a written notice, informing them that the hearing is to be held, and advising the tenant that he has the right to appear in court and defend himself • when the hearing is held, the magistrate will consider your application, and any defence which the tenant may offer • the magistrate must decide whether evicting the tenant will be "just and equitable", and whether it will affect any elderly or disabled people, any children, and any households headed by women • if the tenant has occupied the premises for longer than six months, the magistrate must also consider whether or not the municipality or someone else can provide alternative accommodation • if the tenant's defence is inadequate, and the magistrate considers that eviction is just and equitable, he must issue the eviction order and set a date by which the tenant must vacate • once the time has expired for the tenant to vacate, the sheriff of the court will execute it and make sure that the tenant moves out of the premises. How long will this take? That depends on how busy the court is, and whether the tenant offers a strong defence. Ask your attorney for an opinion: he should know the local magistrate's court well. If you want the hearing to be held urgently, you will have to satisfy the court • that there is a risk of "substantial" damage to property or injury to people if the matter isn't dealt with urgently, and • that the hardship that you're suffering is greater than the tenant's, and • an urgent hearing is the only remedy. How much will it cost? Ask your attorney for an estimate, and for how advice on you can recover the legal costs (as well as the outstanding rent) from the tenant. ------------ Disclaimer: the Institute of Estate Agents of South Africa (Western Cape) has compiled and published these guidelines in good faith, as a service to its members. The guidelines were checked by an attorney before publication. However, as the Institute has no control over the courts, it cannot accept any responsibility or liability for the outcome of any use which is made of these guidelines.