The global spread of COVID-19 has impact millions of people worldwide and locally. Many have been placed on unpaid leave, others have been informed of a reduction in salary or completely lost all income. This has lead to the inability of many tenants to continue paying their rent, effectively defaulting on contractual agreements with their landlords.
During the original lockdown timeframe, no one was allowed to move and evictions were not permitted. During Alert Level 3 and 4, people are permitted to move, subject to complying with certain requirements. Evictions are still not permitted, however, an application for an eviction order may be brought before the courts, which are now able to hear cases and grant eviction orders. Sheriff services have resumed and the deeds office is open and consultations related to evictions will take place.
This means that an attorney is permitted to prepare an order for eviction, which may be granted during level 3 and 4. However, the order is suspended and cannot be executed until the last day of level 3, the date of which is still unknown.
We also expect further clarifications on whether certain evictions may take place during level 3, as the most recent announcement said that some evictions may be granted under specific conditions.
How does the eviction process work?
It’s called a process for a reason. There are many steps involved and you must follow them in order. Eviction is a legal process that must be conducted via the courts and requires an eviction attorney. A landlord cannot evict a tenant without going through due process of law. When there is a written lease agreement in place, a breach of the conditions of the lease is enough reason to cancel the lease.
Good tenants are worth their weight in gold
The most common cause of lease cancellation rent not being paid in full or on time. If you were in a position of having an overall good tenant who usually paid rent on time and he has only defaulted due to lockdown, we would advise you to be a little more lenient. Allow the tenant time to negotiate a plan with you.
If it takes a month or two to find a new tenant, that is lost income, and you may even find you have to drop the rent to get new tenants. In the long run it’s better to accept an equivalent loss of income from a good tenant than to expose yourself to the unknown.
What are the steps you need to take to evict a tenant?
Step 1: Written notice
If you decide to go ahead with the eviction process, you must start by giving the tenant written notice that they have breached the contract and allow them time to make good on paying their rent. Give them a specific time frame in which to catch up with the outstanding payment.
The time frame will be determined by the terms of the lease. If not specified, it will be 20 working days, in accordance with the Consumer Protection Act. If there is no written lease, the landlord must give a full calendar month’s notice. If the tenant manages to pay the arrears rent, the matter is finished and there’s no need to continue with the matter.
Step 2: Letter of cancellation
However, if the breach is not remedied, the next step is to serve a letter of cancellation on the tenant. With luck, the tenant vacates the property at the end of the notice period. If so, you are free to find another tenant – hopefully one who can pay the rent! However, should the tenant disregard the lease cancellation, you may decide to start the eviction process. At this stage an eviction lawyer is required.
Step 3: Eviction
You must apply to the court to have an eviction notice served by the sheriff on the tenant – who is now considered an unlawful occupier rather than a tenant. A court date is set and a deadline given for the unlawful occupier to file an opposing affidavit to oppose the eviction.
In court, the order will either be granted or the case will be postponed for further fact-finding. In the case of vulnerable individuals such as children, the elderly, disabled people, or woman-headed households, the court may want to ensure the unlawful occupier can find alternative accommodation and/or that you have behaved fairly and reasonably throughout.
If the court is satisfied that the case for eviction is sound, the tenant/unlawful occupier will be given time to vacate the property.
Only if, despite this process, they fail to vacate the property within the specified period, will the sheriff will be authorised to remove them and their belongings from the property. The cost of this will be borne by the tenant. Landlords may not change the locks, physically remove personal property, or behave in a threatening way toward the tenant; only the sheriff may take any physical action against the tenant.
Note to landlords
Fitzanne Estates offer letting services over the whole of Gauteng and will find the perfect tenant for your property to let.