This article contains comprehensive information on how to lawfully evict a tenant in South Africa this 2022. It is common knowledge that a landlord cannot forcefully kick out or expel a tenant from their property except it be done lawfully, and there are legal steps to take if this eviction must be recognised by law. All that will be explained in the course of this article. Kindly continue reading to find out more.
If you as a landlord forcefully ousts your tenant out of their abode in your property through unlawful means such as changing the key locks prior to the tenant’s notice, removing your tenant’s door through the use of force, removing part of the roofing sheets protecting them from the sun and rain or by mobilising uniformed men to forcefully evict your tenant, depending on the circumstance, that tenant can take legal action against you for damages, wrongful eviction and trespass.
In this post however, we shall explore the circumstances where you can decide to lawfully evict your tenant and the legal process of evicting such a tenant that is provided for in the law citing the Durban State Tenancy Law 2011 as the reference in this article.
WHEN CAN A LANDLORD EVICT A TENANT IN South Africa?
According to the Durban State Tenancy Law, 2011, a landlord can begin the process of evicting a tenant in South Africa when one or more of the following circumstances are present:
- Where the tenant is owing several months rent and the landlord has served several late rent notice to the tenant
- Where the tenant violates a fundamental clause in the tenancy agreement
- Where the tenant is using the rental property for illicit or immoral purposes such as robbery, prostitution, to mention but a few
- Where the rental property has been abandoned by the tenant
- Where the property is unsafe for habitation which constitutes a danger to human life, for example, where the property is about to collapse.
- Where the landlord or his/her family members wants to personally use the rental property
- Where the tenant is constituting a nuisance in the rental property, for example, constantly fighting
- Where the tenant has seriously damaged the rental property
- Where the landlord wants to carryout structural repairs on the premises of the rental property
- Where the tenant is interfering with your rights as the landlord or the rights of other tenants.
- Where the tenant has sublet the rental property to a third party contrary to the lease agreement.
STEP BY STEP PROCESSES ON HOW TO EVICT A TENANT IN South Africa LAWFULLY 2022
The following is a step by step guide on how to evict a tenant in South Africa lawfully this 2022:
STEP 1: ISSUANCE OF LATE RENT NOTICE
The first step towards lawfully evicting a tenant from your property as a landlord is usually the issuance of late rent notice. This is done when the reason for the removal of your tenant from your property is for non-payment of the rent. In this case, you as the landlord or your authorised agent is required by the law to have made several demands on the tenant.
Under the law, a landlord can seek an order of possession and an order for the recovery of unpaid rent in a court of law. The landlord will be asked to provide an evidence of the non-payment of arrears of rent in court for this to take effect. Therefore, you as a landlord are required to issue a letter titled “Late Rent Notice” to the tenant in question. This will serve as the evidence in court.
STEP 2: ISSUANCE OF A NOTICE TO QUIT
The second step towards legally evicting your tenant in South Africa is to issue a notice to quit and vacate your property. This is mandatory for periodic leases and the length of the notice to quit (or quit notice as we call it in South Africa) depends on the agreement signed by both you, the landlord and your tenant. For example, the landlord and the tenant can come to the agreement that a one month notice would be given in the case of the yearly tenancy by stating it clearly in the tenancy agreement and executing it accordingly by both parties.
But if the contract does not stipulate the length of notice, the provision of the law will apply. For example, the Durban State Tenancy Law 2011 provides that:
- for a yearly tenant, at least 6 months notice must be given
- for a quarterly or half-yearly tenant, at least 3 months notice must be given
- for a monthly tenant, at least one month’s notice must be given; and
- for a weekly tenant, at least one week’s notice must be given.
This step is not needed under a fixed term lease as the landlord allows the term to expire and then issues a seven days owner’s Intention to recover Possession. Exception to this is where the tenancy was terminated by the landlord before the expiration of the term.
STEP 3: ISSUANCE OF OWNER’S INTENTION TO RECOVER POSSESSION
In the situation where the tenant refuses to leave the rental property after the notice to quit has expired, the landlord or his/her lawyer will then issue a seven days Owner’s Intention to Recover Possession to the tenant. This is mandatory for both fixed and periodic leases.
STEP 4: COMMENCEMENT OF ACTION IN COURT
The commencement of action in court is effected when the tenant still refuses to leave or vacate the rental property. This step is usually carried out in a court of law and calling of witnesses and other evidences will be required. A judgment will then be delivered by the court ordering the tenant to vacate the premises either immediately or on a specified date.
Kindly note that where the tenant intends to terminate the lease, he/she is only required to issue a “Notice of Termination of Tenancy” to the landlord and vacate the rental property.
It is important to note that Section 44 of the Durban State Tenancy Law, 2011 provides for the punishment of any landlord who forcefully removes a tenant from their property without going about it legally. When such a person is found guilty, he/she shall be liable to a fine not exceeding Two Hundred and Fifty Thousand Naira or a maximum of six months imprisonment. So in removing a tenant, it is very advisable to follow the provisions of the law, and where a landlord is not sure or clear on how to go about it, it would best to engage an experienced real estate lawyer to provide adequate and efficient legal advice and assistance where necessary.
If you’re a landlord in South Africa and you need to evict a tenant, it’s essential to follow the proper legal procedures. Evicting a tenant can be a complicated process, but by following the law, you can protect your property and your rights as a landlord. Here’s a step-by-step guide on how to evict a tenant in South Africa:
|Understand the reasons for eviction – there are only three grounds allowed by the law:
|– Non-payment of rent
|– End of lease agreement
|– Breach of lease agreement
|Serve notice to the tenant that they are in breach of the lease agreement or have failed to pay rent.
|Obtain a court order – If the tenant fails to remedy the breach or fails to vacate the property, you will need to approach a court for an eviction order.
|Sheriff or senior court official delivers the court order – The Sheriff of the Court or a senior court official will deliver the court order to the tenant.
|Warrant of Eviction – The tenant will have a specified date by which they must vacate the property. If they fail to do so, you may apply for a Warrant of Eviction.
Evicting a tenant in South Africa can be a lengthy and complicated legal process, so it’s important to follow the correct procedures to ensure that you protect your rights as a landlord. If you have any doubts or concerns about the process, consult with a legal professional who is experienced in South African property law.