MAIN IMAGE: Kavita Kooverjee, Schoeman Klaw Inc Attorneys, Conveyancers and Notaries Public, Merrilyn Kader of LexisNexus
Staff Writer
So, you have been stressing for months about unpaid rent due from your tenant, and you are unsure how to remedy the situation. On top of that, you are unsure if you can evict your tenant legally, as you do not have a written lease agreement.
Whether you have a written lease agreement or not, here are a few simple yet effective steps to evict your tenant legally.
“The jurisdictional requirement to trigger an eviction under the Act is that the person sought to be evicted must be an unlawful occupier within the meaning of the Act at the time when the eviction proceedings were launched. Section 1 of the Act defines an unlawful occupier as ‘a person who occupies land without the express or tacit consent of the owner or person in charge or without any other right in law to occupy such land’.
“Consent is defined as ‘the express or tacit consent, whether in writing or otherwise, of the owner or person in charge to the occupation by the occupier of the land in question,” says Merrilyn Kader of LexisNexus.
Process
As stipulated by the Prevention of Illegal Eviction and Occupation of Land Act 19 of 1998, a landlord has to follow the legislated procedure when evicting a tenant legally.
After an initial attempt to negotiate, by either calling the tenant or speaking to him/her in-person to pay the unpaid rent, one can proceed with the legal eviction process.
“Firstly, notify the tenant in writing to rectify any breach, e.g., outstanding rent due, giving the tenant a period to rectify the relevant breach. If the time frame is not specified, then it will be 20 days according to the Consumer Protection Act 68 of 2008. If there is no lease agreement, then the tenant will be given one calendar months’ notice to rectify the breach.
“If no rectification has occurred, then you as the landlord have the right to terminate the lease agreement. You will also need to notify the tenant that you have terminated the lease and give a date by which the tenant must vacate the premises,” Kooverjee said.
If the tenant does not vacate the leased premises by the specified date, the landlord has a right to apply to court for an Eviction Order. The tenant needs to be informed that you will be proceeding with legal action.
“You will now need to apply to the Magistrates Court or High Court, depending on the jurisdiction of the specified property, for an Eviction Order. The landlord will be provided with a date and time for the eviction application to be heard.
“The tenant, as well as the municipality in which the property is situated, must be served with written notice of when the eviction application will be heard. The authorised Sheriff must serve this written notice at least 14 business days before the eviction application is heard in court.
“During the court hearing, the tenant will need to prove that he/she has a valid defence for not paying rent. If the court decides that there is a valid defence, then a trial date will be set for the tenant to present his/her evidence. If there is no valid defence, a Warrant of Eviction is issued, which allows the Sheriff to remove the tenant’s possessions from the property,” she explained.
According to Kooverjee the process can be a complicated one. It is therefore always a clever idea to seek legal assistance where the matter has entered the litigious phase.
