Property Law - My tenant failed to pay rent, can I kick him out?
If your tenant has failed to pay his or her rent, it can be tempting to simply kick them out yourself and change the locks. However to do so would be considered illegal, even if the tenant has become an illegal occupant. The reason is because of the PIE Act.
In summary, the prevention of illegal Eviction from unlawful occupation of Land Act (PIE) (1998) provides procedures for eviction of unlawful and prohibits unlawful evictions. The main aim of the Act is to protect both occupiers and landowners. The owner or landlord must follow the provisions of the prevention illegal Eviction from and unlawful occupation of Land Act (PIE)(except in areas where the extension of Security of Tenure Act, ESTA operates) if they want to evict a tenant.
WHO IS COVERED?
Anyone who is an unlawful occupier, which includes tenants who fail to pay their rentals and bonds, is covered by PIE. It excludes anyone who qualifies as an ‘occupier’ in terms of the extension of Security of Tenure Act.
WHEN IS AN EVICTION LAWFUL?
For an eviction to happen lawfully, certain procedures must be followed. If any one of them is left out, the eviction is unlawful. So, if an owner wants to have an unlawful occupier evicted, they must do the following:
- Give the occupier notice of his/ her intention of going to court to get an eviction order.
- Apply to the court to have a written notice served on the occupier stating the owner’s intention to evict the occupier.
- The court must serve the notice at least 14 days before the court hearing. The notice must also be served on the municipality that has jurisdiction in the area. After a Landlord intrusts their attorney to commence eviction proceedings, the following happens:
- Typically, (except in a case of urgency, e.g. if the tenant is maliciously damaging the leased premises because he got a notice to vacate) the attorney will call on the tenant to remedy the breach (usually failure to pay rent on time);
- If the tenant fails to deal with the demand, the tenant will be considered to be in illegal occupation of the property;
- The attorney doesn’t give the tenant notice at this time;
- The application to court sets out the reasons for the application and the personal circumstances of the occupants;
- If the courts are satisfied that it is fair to evict the tenant and all persons occupying the property with him, it gives a directive as to how the application for eviction must be served;
- The sheriff then serves the notice of intention to evict on the tenant and the local municipality;
- The occupants have an opportunity to oppose the application, and explain why they should not be evicted;
- If there is opposition, the matter gets argued before a magistrate or judge, who decides whether an eviction order can be granted. And if so, by when the occupants should vacate the property within a stipulated time;
- If the tenant does not oppose, the court will grant the eviction order;
- If the tenant fails to move, the attorney will apply to court for a warrant of ejectment to be issued by the Court. This process can take a further three to four weeks.
Courtesy: The EAAB - Estate Agency Affairs Board