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Eviction: Following the correct process

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Often people enter into rental agreements in harmony with hopes of favourable outcomes, however, sometimes they encounter problems, for example arrear-rental, which ends with an eviction. It is unfortunate that both the landlord and tenant have been experiencing financial hardship since the start of lockdown and made the relationship even more dire.

It is without a doubt that people have been losing employment, or had their salaries reduced, or temporarily laid off, or businesses having to close making it difficult to pay rental. Landlords are forced to evict tenants because there is no income being generated. This subsequently, put severe constraint on landlords – they are receiving no rental income, thus cannot meet their financial obligation; such being payment of mortgage loans, rates and taxes.

The Constitution of the Republic of South Africa and legislation expressly prohibits unlawful removal of a person having possession of a property, irrespective of whether the person is illegally occupying the property. Generally, no person may be evicted from a property without approaching a competent court for an eviction order. A landlord is prohibited (without a court order) from:
• forcefully removing belongings of a tenant;
• locking a tenant out with their belongings still inside;
• selling belongings of the tenant to pay rent;
• closing a business of a tenant (if it was used for commercial purposes).

The Constitution holds that everyone has a right to adequate housing and prohibits illegal eviction.

Lockdown regulations imposed further restrictions: The Disaster Management Act provided no person may be evicted from his or her home, land, or place of residence for the duration of the national state of disaster, unless a court of law grants an eviction order. Moreover, the court has the power to stay or suspend the execution of that order.

It is therefore important for any landlord to follow a proper procedure when making application for eviction. It is also necessary to have a properly written lease agreement, clearly stipulating the terms and conditions upon which the contract may be terminated. An existing contract protects both the tenant and landlord from any fabrication of information and assist in the eviction application.

You can approach our office, if you believe you are being unlawfully evicted or as a landlord want to evict a tenant following the correct procedure.

Article written by Unathi Mpikwa, candidate attorney at Faure & Faure Inc. For more information, contact 021 871 1200 or email contact@faurefaure.co.za.

Unathi Mpikwa, candidate attorney at Faure & Faure Inc.

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