Download Lease Cancellation And Eviction Notice Letter - FormFactory

Download Lease Cancellation And Eviction Notice Letter

What is an eviction order?

According to the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act No 19 of 1998 (known as the PIE Act), it is illegal to evict a tenant from a residential property without a court order. The main purpose of the PIE Act is to protect tenants’ rights in South Africa, by prohibiting illegal eviction, as well as to protect landowners, by stipulating the procedures for eviction of unlawful occupiers.

A landlord can submit an application for an eviction order to the court to evict an unlawful tenant from his/her property. A tenant unlawfully occupies a residence when the lease agreement has ended – whether by cancellation due to a breach by the tenant (e.g. not paying rent)  or by due notice given in terms of the lease.

In accordance with the Consumer Protection Act (CPA), a landlord must give a tenant at least 20 business days’ notice before cancelling a lease agreement to provide the tenant with the opportunity to rectify the breach (e.g. to pay the rent).

Landlords wishing to approach the court to obtain an eviction order are advised to apply in good time and to hire an attorney who is well-versed in the legalities of evictions. If the proper legal procedures are not followed the process of securing an eviction order can be long and expensive.

Types of tenant eviction processes in South Africa

  • Normal eviction process
  • Urgent eviction process
  • Organs of state specialised eviction process

Tenant eviction procedure in South Africa

Step 1: Cancellation of lease agreement

Twenty-one business days after a tenant has been served with a notice of breach, a landlord can cancel the lease agreement – provided that the tenant has not rectified the breach. To cancel the lease agreement the landlord must notify the tenant, by means of an eviction letter, of the cancellation and a notice to vacate the premises by a specific date.

Once the lease agreement has been cancelled the tenant becomes the unlawful occupier. You can download a sample letter from the landlord to the tenant as notice to vacate below.

Step 2: Initiate legal action

If the unlawful occupier failed to vacate the premises on the specified date as per the cancellation letter, the landlord must proceed with legal action as soon as possible. An eviction application can be lodged in a magistrate’s court or a high court.

The landlord can initiate summons proceedings for outstanding rent together with the eviction application, which also includes requesting the court’s permission to serve a notice of motion to the unlawful occupier.

Eviction proceedings cannot be initiated if the tenant lodged a complaint with a Rental Housing Tribunal (RHT) – in which case the application can only be made after the RHT has made a ruling or three months have passed since the date on which the complaint was lodged.

Step 3: Serving the notice of motion

The unlawful occupant must be notified of court proceedings (notice of motion) at least 14 calendar days before the matter is set to be heard in court – or else the eviction application will have to be resubmitted. The notice of motion must be served to the unlawful occupant in person.

According to Section 4(5) of the PIE Act, the notice of motion must:

  • State that proceedings are being instituted in terms of section 4(1) of the PIE Act for an order for to evict the occupier;
  • Indicate on what date and at what time the court will hear the proceedings;
  • Set out (in a supporting affidavit) the grounds for the proposed eviction;
  • State that the unlawful occupier is entitled to appear before the court and defend the case; and
  • State that the occupier has the right to apply for legal aid.

The notice of motion, as well as the main eviction application, must also be served on the municipality.

Step 4: Court proceedings

An eviction application can be either opposed or unopposed by the unlawful occupier. An application is unopposed when:

  • Neither the occupier nor his/her attorney is present in court on the day of the hearing. In this case, the court will grant the eviction order and decide by what date the unlawful occupier must vacate the premises; or
  • The unlawful occupier and/or his/her attorney appear in court and agree to vacate the premises by a certain date.

The occupier can oppose the application by:

  • Informing the court of his/her intention to oppose the application before the court date set out in the notice. In this case, the hearing will be postponed to allow both parties to file papers; or
  • Informing the court of his/her intention to oppose the application on the day of the hearing. The occupier will then have to explain in court why he/she failed to oppose the application timeously and why the application should not be granted. If the court rejects the occupier’s reason for opposition, the application will proceed and an eviction order will be granted.

If the court finds that the landlord engaged in unfair practice under the Rental Housing Act, both parties will be referred to a Rental Housing Tribunal (RHT) and the application will only proceed in court after the RHT has made a ruling.

Step 5: Court eviction order

The court eviction order must state the date by which the unlawful occupier must vacate the premises. It is common practice in South Africa to provide the occupier with a month to find alternative accommodation.

The court order must also state that the Sheriff is authorised to remove the occupier by force if he/she fails to vacate the premises on the specified date.

Step 6: Forcible removal

If the unlawful occupier has failed to vacate the premises by the date specified on the court eviction order, the landlord must immediately have the clerk of the court issue a warrant of ejectment. Thereafter, the Sheriff can be instructed to remove the unlawful occupier from the premises.

How long does the eviction process take?

The duration of the entire eviction process depends on whether or not:

  • A proper (CPA compliant) lease agreement was in place;
  • The lease agreement has been validly cancelled after the breach;
  • The correct eviction procedures were followed; and
  • The occupier is contesting the eviction application.

An unopposed eviction application can take four- to ten weeks, while an opposed eviction application can take anything from six- to eighteen months.

How to get rid of tenants without an eviction order

An unlawful eviction could have dire consequences for a landlord – like a non-paying tenant occupying the premises indefinitely. Spoliation (e.g. disconnecting the electricity or water, changing locks or using force or intimidation to evict the tenant) can result in the landlord being ordered to pay the tenant’s legal costs and/or provide the tenant with alternative housing.

However, should the occupier oppose the eviction application, it might be speedier to negotiate a settlement by which the occupier agrees to vacate the premises by a certain date. If the occupier then fails to vacate by the agreed date, he/she would not be able to oppose the eviction application as he/she admitted to being an unlawful occupier upon signature of the agreement.

How many months must a tenant be late on rent before the eviction process can commence?

It is best to take immediate action as soon as a tenant has missed a rent payment by contacting the tenant. As soon as a tenant has missed a single payment, he/she is in breach of the lease agreement and steps can be taken to encourage the tenant to make a payment or face eviction.