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How to lawfully evict your defaulting tenant

In the current difficult economic conditions many tenants in the residential property market are not able to keep up with their monthly rental. Here's what landlords can and can't do.

The PIE Act protects tenants and landlords

With the Prevention of Illegal Eviction from Unlawful Occupation of Land Act, No. 19 of 1998, also known as the PIE Act, tenants cannot simply be evicted.

The act applies to the occupation of a residential property  in an urban area.

The purpose of the act is to ensure that tenants are protected from being unlawfully evicted from a property. While the act aims to prevent wrongful eviction, it does not mean that a tenant cannot be evicted, merely that the correct procedure needs to be followed.

Any homeowner or investors who wish to let out a property should familiarise themselves with the PIE Act as well as the procedures required to lawfully deal with a defaulting tenant.

The legal process

gebruik eviction

 

Ensure that lease agreements meet legal requirements and include the necessary clauses that protect the landlord and make sure that the lease agreement complies with the Consumer Protection Act (CPA).

Once a tenant defaults on the agreed rental, the rental contract has been breached.

The landlord must:

  • Send a notice to the tenant informing them of the breach, specifically referring to the breach clause stated in the lease agreement.
  • Give the tenant at least a 20 business days’ notice to allow the tenant to rectify the breach.

2 options if the notice period has expired:

  • Issue summons with an automatic rent interdict, or immediately cancel the rental agreement. If the contract made provision for it, the landlord may be able to recover legal costs from the tenant.
  • If the tenant has still not made any attempt to pay the outstanding rental amount after the summons, the landlord can cancel the lease. If the agreement is cancelled the tenant will no longer be protected and will be regarded as an illegal occupier of the property. In terms of the PIE Act, the landlord will then be able to legally evict the tenant and issue summons for outstanding rent and legal costs incurred, at the same time.

Time and money

Time - money. Business concept. Analog hours on a heap of paper dollars
Time – money. Business concept. Analog hours on a heap of paper dollars

It takes 8 to 12 weeks

The application must be made to either a Magistrate’s Court or the High Court. If the application is unopposed it can take eight to ten weeks for the eviction order to be granted. In addition it is common practice to give the tenant at least another 14 days to find other accommodation before the eviction order is executed. Only once this notice and grace period has passed will the sheriff be lawfully entitled to evict the tenant.

Unopposed it will cost between R12 000 and R20 000

The cost of the process may vary depending on the sheriff’s fees and whether the matter is opposed or not. An unopposed eviction will cost between R12 000 and R20 000 in legal costs plus disbursements. The cost of an opposed matter will be substantially more.

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