A landlord can’t take the law into his or her own hands if a tenant stops paying rent.
Some landlords switch off the electricity or change the locks to the doors to the house. This is illegal, and could result in the tenant’s bringing a spoliation application to get undisturbed possession (free use and enjoyment) of the house.
For example, I rent a house. The owner forces me out and changes the lock on the door so I cannot go back in. I go to court that same day and ask for a spoliation order. If I am successful, the magistrate will order that I be allowed back into the house immediately. If the owner wishes to get me out he must make a proper case in the court and he must get a court order to evict me.
The tenant must satisfy two requirements:
· that he was in peaceful/undisturbed possession of the property;
· and he was unlawfully deprived of possession.
A spoliation order is very seldom refused. The court will also order the tenant to pay the costs of the application, which can be quite substantial.
The law also provides that where a tenant is unlawfully deprived of his use and enjoyment of the premises in this manner, he is not required to pay rental during the relevant period.
So what must a landlord do to get his tenant out?
The Prevention of Illegal Eviction and Unlawful Occupation [PIE] Act sets out the steps a landlord must follow. He or she 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;
- 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.
The notice must contain the following:
- a statement that says proceedings are being instituted in the court in terms of PIE
- the date and time of the court hearing
- the grounds for the proposed eviction
- that the occupier is entitled to appear before the court and defend the case
- that the occupier can apply for legal aid
The unlawful occupier can go to the court hearing on the day it is set down and defend himself if he believes the eviction is unfair.
A person who wants to defend the court action should approach the Justice Centre at the Magistrate’s court for assistance. An occupier threatened with eviction can apply for legal aid assistance and representation.
The court will only give an eviction order if it is proved that:
- the person who is applying to evict you, is in fact the owner of the land
- you are an unlawful occupier
- the owner has reasonable grounds to ask for your eviction
The Act also allows for urgent eviction proceedings. This will be granted if the owner can show that:
- there is real danger of substantial injury or damage to any person or property
- there is no other way to solve this situation
- the owner is going to suffer more if the occupier stays on the land, than the occupier will suffer if he or she gets evicted In such a case, the owner can go to court and get a final order for the eviction.
If the court grants an eviction order:
The eviction order will state a date by when you have to leave the property, and also the date on which the eviction will take place if you do not vacate.
Who can remove you?
Only the sheriff of the court can carry out an eviction.