Where the Contract of Lease is breached in any way by the tenant and, after receiving notice thereof, has not remedied such a breach within the period agreed upon, the landlord may cancel the contract. In this instance, the tenant will be found to be an illegal occupier.
Where a tenant fails to perform as agreed upon in their Lease agreement, they will be found to be in breach of that agreement. An example of this is a failure to pay rent timeously or at all. The landlord must notify the tenant in writing of their decision to terminate the contract by means of a letter of cancellation, allowing the tenant a reasonable period, or such timeframe as agreed upon in terms of such a lease, to vacate the property.
If the tenant chooses to ignore the notice of cancellation of the lease agreement by remaining on the property and continuing to use and enjoy it, the tenant will be regarded as an illegal occupier of the property. The same applies if the tenant continues to occupy the property after the expiration of the initial lease period. An illegal occupier may be evicted from the rented property by the landlord or owner. This will be done at a Magistrate’s or High Court, and for that, the services of a lawyer will be required.
There is no longer a common law right to evict someone. Instead, the owner or landlord must follow the procedures and provisions of the Prevention of Illegal Eviction and Unlawful Occupation of Land Act 19 of 1998 (hereinafter referred to as the “PIE Act”). The tenant must be notified of the pending action by means of a Notice of Intention to Evict, which must be done at least 14 days before the date of the court hearing. This notice must also be sent to the respective municipality involved.
On the date of the hearing, the court will consider factors such as whether the person is an unlawful occupier, whether the owner has reasonable grounds for eviction, and whether alternative accommodation is available to the tenant. It is now considered a criminal offence to evict someone without a court order to that effect. Constructive eviction, for instance, where a landlord cuts the water or electricity supply to the property in order to “drive” the tenants out, is also a criminal offence.
The type of action or application that your legal representative will bring will vary depending on the facts and circumstances of the matter. Such actions or applications can be heard in the Magistrate’s or High Court, depending on the value of the occupation and not the leased property value. The lease agreement may also contain a clause where the parties agree to a particular court’s jurisdiction, which will be followed. If the court proceedings are successful, a Warrant of Ejectment may be issued, allowing the owner or landlord to proceed with the eviction of the illegal occupier.
Once the owner or proprietor of the leased property has followed all the prescribed procedures as laid out in the PIE Act and established that their tenant is considered an unlawful occupier, they may proceed with the above-mentioned steps in order to evict them from their property.
An unlawful occupier may be removed from the premises upon the instruction of an Eviction Order/Warrant of Eviction, with the assistance of the Sheriff of the respective court, at a minimal fee. The steps laid out in the PIE Act are simple to understand and follow, allowing a transparent and fair chance to both the landlord and the tenant in these difficult situations.
In practice, courts have regard for the following:
- The rights of elderly persons;
- Children;
- Disabled individuals; and
- Households headed by a woman.
However, the court has wide discretion to grant an appropriate date on which the unlawful occupant must vacate the property, and a date when the actual eviction order is to be effected.
