An eviction may occur when a person or a company is legally forced to leave a property.
What is an eviction?
The Constitution provides that no person's property may be taken away from him/her/it and that no person/business may be evicted from his/her/its leased property without a court order.
This means that an owner or a person in charge of a property (“landlord”), must apply to the court before evicting a tenant from his/her/its property.
The procedure for obtaining an eviction order is different for residential properties compared to commercial properties.
Residential Properties
The Prevention of Illegal Eviction from and Unlawful Occupation of Property Act (“PIE Act”) governs this process. The specific procedure as provided by the Act must be followed when a landlord wants to evict a tenant using his/her property for housing purposes (for example, staying in his/her house, flat, room or similar structure).
When may a person be evicted from the property s/he is staying on?
A person may be evicted from a property if s/he is considered to be an unlawful occupier.
When a landlord cancels or withdraws his/her consent previously given to an occupier to stay on his/her property, the occupier will then also be considered to be unlawfully occupying the property.
It is important for a landlord to use the procedure provided for in the PIE Act, rather than taking the law into his/her own hands, for example, cutting the electricity and water supply to the property or intimidating the unlawful occupier, in the hope that s/he will vacate the property. These actions are illegal and the tenant could obtain a spoliation order against the landlord which could become an unnecessarily costly mistake.
Obtain legal advice when dealing with evictions as they are complex court applications.
Commercial Properties
Eviction proceedings in relation to commercial properties are not governed by the PIE Act, however, these proceedings can also become very complex and we suggest that you contact an attorney well versed in property law and contractual law.
A lease agreement governs the relationship between the tenant and a landlord, the agreement only terminates in the majority of cases due to the following two reasons:
effluxion of time; or
cancellation of the agreement due to a breach of a material term of the lease agreement by either party.
The cancellation of an agreement is an important step in the eviction process and has to be done in terms of the agreement or if the agreement is silent in this regard, the cancellation must be done in terms of the provisions of our common law.
Most lease agreements require that you first place the defaulting party on written terms to remedy its breach within a specified time before the agreement may be cancelled formally.
An eviction may be brought through the Magistrates Court or the High Court by either instituting action or application proceedings. Your attorney will be able to advise you on the best way to initiate these proceedings.
If you require any assistance or further information, please feel free to contact Xander Naudé of Naude Attorneys - email: xander@naudelaw.com
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