Residential Evictions: The Basics
Q: What is a residential eviction?
A residential eviction is the forced removal of unlawful occupiers from a house or from land. Importantly, section 26 of the Constitution protects an individual’s right to housing by providing that an eviction may only take place in terms of a court order and after all relevant circumstances have been considered. In order for an eviction to be valid, the correct legal process must be followed, which includes an application which must be made to a competent court in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (“PIE”).
Q: Who may apply for an eviction?
Either the owner of the property or the person legally in charge of a property (referred to as the applicant) may apply to court for an eviction order. The applicant must be able to show that the occupier is in illegal occupation of the property and that the procedural and substantive requirements for the granting of an eviction order have been met.
Q: What are the steps?
- Ensure that the occupier is not legally entitled to occupy the premises. This may, for instance, include the cancellation of a lease agreement (if applicable) or the delivery of a notice to vacate the property. This is a crucial step to the success of the eviction application.
- The Main Application
An application to court must be prepared – this is done in a prescribed form and must be supported by an affidavit deposed to by the applicant. This application is then issued by the Court and served by the Sheriff on, amongst others, the occupiers of the property. Owing to the technical nature of this application, it is recommended that it be drafted by an attorney with experience in such matters.
- Ex-parte Application
In compliance with the requirements of the PIE Act an ex-parte application (i.e. an application made without notification to the other parties) must be brought. The purpose of this further application is to inform the court that an eviction application has been served on occupiers of the property and to obtain authorisation and directions for service of a further notice of the proceedings on the occupiers.
- Notice of Proceedings
Once the court has authorised service of a further notice on the occupiers, this notice must be served on the occupiers by the Sheriff at least 14 days before the main application is heard in court. This notice once more informs the respondent of the hearing date in the main application, provides a summary of the reasons for the eviction and sets out the consequences of ignoring the matter.
- Hearing of the Main Application and Further Steps
By the hearing date of the main application it will become known if the application is being opposed by the occupiers or not. This factor will largely determine the further conduct of the matter. Ultimately, if the application is successful, an order declaring the occupiers to be unlawful and providing for their eviction, will be granted.
Important to note: Before an eviction order is granted by the court the court will consider the personal circumstances of the occupants as special regard is given to the rights of children, the elderly, disabled persons and women-headed households. The court has to be satisfied that any order granted will not infringe the rights of the occupants without just cause.
Q: Are evictions allowed during the current National State of Disaster?
Although the National State of Disaster initially placed a blanket moratorium on evictions, this position was altered with the relaxing of the various lockdown alert levels. Persons declared to be unlawful occupiers of property may now be evicted provided that evidence of the eviction being just and equitable is placed before the court. Determining whether an eviction is just and equitable involves taking into account the circumstances of all parties.
Before applying for an eviction order:
- Attempt to effectively communicate with the occupier;
- Do not “take the law into your own hands”;
- Make sure that you understand what an eviction entails and the procedure to be followed;
- Ensure that valid notice has been given to the occupier.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E & OE).
Written by: Simthandile Cagwe – Candidate Attorney
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