STEP 1: NOTICE TO REMEDY
1.1. The first step is to cancel the lease agreement formally so that the tenant/s be regarded as being in unlawful occupation.
1.2. In the event that the tenant breached the agreement, a notice to remedy must be sent in accordance with the provisions of the lease agreement.
1.3. Generally, lease agreements have a standard clause regulating any breaches occurring either on the side of the tenant or the landlord. This clause then governs the time period which ought to be given to the tenant to remedy their breach.
1.4. The property owner must cancel the lease agreement for the occupiers to be regarded as unlawful or illegal occupiers.
STEP 2: NOTICE TO TERMINATE AND VACATE
2.1. If the tenant has failed to remedy the breach within the required period, as per the notice to remedy, the second step will be to send a notice to the tenant informing them that the lease agreement has been terminated and affording the tenant with either 20 days or 30 days to vacate the premises.
STEP 3: COMMENCING WITH THE EVICTION PROCEEDINGS
3.1. Should the tenant fail to vacate the premises within the specified period as per the notice to vacate, the owner can commence with the eviction proceedings.
Generally, there are two different steps after commencing litigation:
- NOTICE OF MOTION AND FOUNDING AFFIDAVIT
- The first step is to have a Notice of Motion and Founding Affidavit compiled (application).
- Thereafter, the application is issued and served on the tenant personally.
iii. The tenant is afforded a period of 5 court days during which he/she can oppose the application and thereafter 15 court days to file an answering affidavit.
- The owner is then afforded the opportunity to respond thereto, by filing an answering affidavit.
- EX PARTE SECTION 4(2) NOTICE AND FOUNDING AFFIDAVIT
- The second step is to have a Notice in terms of Section 4(2) and Founding Affidavit compiled. This takes the form of an ex parte application.
- It is critical that the contents of the Notice in terms of section 4(2) contain all the necessary requirements as listed in section 4(5) of the PIE Act.
iii. The court then authorises the service of the Notice in terms of Section 4(2), whereafter it has to be served on the tenants personally, 14 court days prior to the hearing of the matter.
- Please note that in terms of the matter between Cape Killarney Property Investments (Pty) Ltd v Mahamba and Others, litis contestation had to be reached in the matter prior to proceeding with the Section 4(2) application.
STEP 4: HEARING
It is the onus of the applicant (owner) to prove on a balance of probabilities that it is just and equitable to evict the tenants.
In determining whether the eviction is just and equitable, the presiding officer will take numerous circumstances into consideration, including but not limited to, the availability of alternative accommodation in the area, the age of the tenants and whether there are any children, individuals with disabilities or elderly people residing on the property.
During the return date as set out in the Section4(2) notice, the presiding officer can either grant the eviction, dismiss the eviction or postpone the matter to grant the illegal occupants an opportunity to file their papers (if they had not done so) or obtain legal representation. The presiding officer can also elect to listen to verbal arguments from both sides.
STEP 5: ORDER
If the court grants the eviction order, it must clearly state on which date the occupiers must vacate the property.
If the illegal occupier fails to vacate the premises in terms of the court order, the sheriff is then empowered to evict the occupier by force if necessary. The court will consider before granting the eviction order whether the occupier is in fact an unlawful occupier and whether the owner followed the correct procedure as provided in the PIE Act; how long the occupier has been in occupation of the property; if there us any elderly, children, disabled persons and households headed by women; whether the occupiers have alternative accommodation and/or whether it will be just and equitable to grant the eviction order.
As can be seen above, evictions can be complicated and drawn out; it is not just a matter of deciding to evict illegal occupants. You will need the expertise of Attorneys who are well acquainted in dealing with these matters over the years.
At Burger Huyser Attorneys, we pride ourselves on delivering and sharing our experience, passion and integrity to your advantage. Our attorneys have the knowledge to assist with this daunting task of evicting illegal occupants. Contact us today in order for us to assist you with eviction orders.