It’s no secret that the impact of COVID-19 on the residential sector has caused major disruptions in the relationship between the landlord and its tenants. It is therefore important to know your rights when leasing a property.

A breach of contract occurs when one of the parties does not maintain the terms stipulated in the lease agreement.

It’s important to carefully analyse the agreement to ascertain whether provision has been made for such natural disasters.

If the agreement is silent on the rights or relief of either party in such a scenario, then the onus shifts to the tenant to prove the common law remedy of supervening impossibility due to COVID-19.

Should the tenant not be able to prove this remedy, then the landlord clearly acts in his right to lawfully evict a tenant.

One should also be mindful of Rental Housing Legislation, which is strongly biased in favour of tenants, but this does not mean that landlords do not have rights.

The Process of Eviction

To lawfully evict a tenant who is not performing in terms of the agreement, a landlord and society as a whole must be mindful of the Prevention of Illegal Eviction (PIE) and the Unlawful Occupation of Land Act 19 of 1998 (“PIE Act”) which sets out requirements.

Step 1 - Eviction Notice

 An Eviction notice/demand must be served on the tenant in breach which basically warns the tenant of the intended eviction and affording such tenant at least 30 days to vacate thew premises.

As the landlord and tenant relationship is such a powerful one, it is often recommended that they negotiate settlement terms which are favourable to both parties. Service of this notice is affected by the Sheriff of the Court, either by hand or registered post.

Step 2 - Notice of Motion

This step entails the court application where the landlord files his complaint at the relevant court with jurisdiction. This is done by notice of motion, served on the tenants with supporting affidavits in support of the landlord’s application. The notice of motion contains the nature of the complaint, together with a court appearance date and other important dates such as when the opposing papers must be filed should the matter become opposed.

Step 3 - Eviction Application

This step involves the actual appearance in court for hearing of the eviction application. This can be done either by appearing personally or by making use of legal representation who act on behalf of a party. Should the tenant win the case, he/she will be allowed to stay on. The landlord may be burdened with the tenant’s court cost and attorney’s fees. In the event that the Landlord wins, the court will then issue a Court Order, also known as a Warrant of Eviction or WRIT of Restitution, which provides the tenant to voluntarily vacate the premises or, failure to do so, authorise a Sheriff to remove the tenant and their belongings – with costs against the tenants.

Step 4 - Eviction Court Order

This step relates to the forced eviction of tenants by the Sheriff who is ordered to serve a copy of the Eviction Court Order on the tenants.

The Sheriff is obliged to first serve a copy of the Eviction Court Order on the tenants. This enabled the Sheriff to forcefully remove the occupants after the vacation date appointed by the court has lapsed. As this is a serious form of removal, the sheriff may obtain assistance of the police to assist with the removal of occupants, including demolishing any erected structures.

As evictions are such lengthy processes, it can also become extremely costly for both parties. It is thus important to savour proper communication between the landlord and its tenant. It is also recommended to approach legal advisors in this regard to minimise the costs and unnecessary rental losses.

Bailey Haynes Inc. – Attorneys in Cape Town

Have you been affected by the COVID-19 pandemic and not sure if you have a claim in law or whether you are being lawfully evicted? Contact our attorneys in Cape Town. We can assist you with your claim.