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In this article, we will be discussing the process of eviction notice without a lease to assist landlords in handling such cases. A landlord may choose to evict his or her tenant for a variety of reasons. This might include a tenant that refuses to vacate the property after the expiry of the lease, a tenant that damaged the property, and nonpayment or late payment of rent, to name but a few. As frustrating as this may be, landlords may not take it upon themselves to kick their tenants out.
Certain rules must be followed when it comes to problematic tenants. For a tenant to be evicted legally, the guidelines in the Prevention of Illegal Eviction From & Unlawful Occupation of Land Act No. 19 of 1998 must be followed. South African legislation makes it illegal for an unethical landlord to evict a tenant and put them out on the street without fair notice. Senior pensioners, handicapped, individuals, children, single mothers, and other vulnerable persons, are given special consideration under South African legislation.
Residential Lease Agreements in South Africa are mainly regulated by the Rental Housing Act No. 50 of 1999 (RHA), as amended. In terms of the RHA, a lease agreement between a Landlord and a Tenant does not have to be in writing, although it is always advisable that a written lease agreement be concluded and signed between the Landlord and the Tenant. Section 5(1) of the RHA specifically states that a lease does not need to be in writing unless the provisions of the Formalities in Respect of Leases of Land Act No. 18 of 1969 (FRLLA), apply.
Although the RHA is pending amendment, Section 4(5)(c)(d) provide that the Landlord has the right to terminate the lease as long as the grounds for termination do not constitute an unfair practice and are specified in the lease. The Section goes on to state that on the Landlord terminating a lease, the Landlord must receive the property back in a good state of repair, save for fair wear and tear and if necessary, may repossess the property on first having obtained an order of Court.
As stated above, an oral lease agreement is valid, but again it is recommended that all leases be put into writing and be signed by all parties.
The RHA in Section 5(3) states that a lease is deemed to include certain terms, some of which are listed below:
Importantly, Section 5(5) of the RHA states that if when the lease ends, the Tenant remains in the property with the express or implied consent of the Landlord, the parties are deemed to have entered into a periodic lease on the same terms and conditions as the expired lease except that 1 months’ written notice must be given by either party to terminate the lease.
A lease agreement, in terms of the RHA, must as a minimum state the parties, a description of the property, the amount of rental and the escalation, the frequency of rental payments, the amount of the deposit, the lease period, the obligations of the Tenant and the Landlord and what other amounts besides rental are payable. Another important provision is Section 5(8) of the RHA, in that a copy of any house rules, these can for example be conduct rules if the property forms part of a Community Scheme, must always be attached as an annexure to the lease agreement.
In the event of there being no written lease between the Landlord and the Tenant, the following are important provisions which the Landlord must take notice of, before issuing an eviction notice:
The Landlord must either ensure that the term of the lease provided for in the oral agreement has expired and if it has, and the lease has continued on a month-to-month basis, the Landlord must give the tenant 1 calendar months’ notice of termination of the oral lease and for the tenant to vacate the property. If the oral lease is still current/in force and should the Tenant be in breach of the lease, then the Landlord must send a written notice to the Tenant demanding the Tenant remedy the breach. Failing the Tenant remedying the breach, the Landlord must send a written notice to the Tenant cancelling the lease agreement.
Once the lease has been terminated or cancelled by the Landlord, the Landlord can then dispatch to the Tenant, a written notice calling upon the Tenant to immediately vacate the property. It is important that this notice be sent to all available addresses of the Tenant, and any domicillium address selected by the Tenant as well as to the Tenant’s email address.
The eviction notice must state that the Tenant has no legal right to occupy the property and failing the Tenant vacating the property, within a period specified by the Landlord, that the Landlord will without delay bring eviction proceedings out of the relevant Court to obtain a court order for the eviction of the Tenant and further that the Tenant will be responsible for the applicable legal costs of the Attorney instructed to bring the eviction application.
The Prevention of Illegal Eviction From & Unlawful Occupation of Land Act No. 19 of 1998 (PIE act) must be followed by the Landlord to obtain an eviction order of the Tenant from the property. An ordinary application for eviction is brought by the Landlord to the Court and before the ordinary application is heard by the Court, an ex-parte application (ex parte, means the tenant is not notified of the application) is launched to the Court for service of the PIE Act notice on the Tenant.
If the application for eviction is unopposed, an eviction order for the Tenant can be obtained by the Landlord in approximately 8 – 10 weeks, depending on the Court’s availability.
Evicting a tenant can be a lengthy and costly process, even with written lease agreements in place. The process may be further complicated without a lease or so-called verbal lease. For this reason, pursuing a legal eviction procedure should be regarded as a last resort. That being said, eviction notice without a lease may at times be the only option and can be successfully concluded with the help of expert legal consultation.
For more information about the formal eviction process, read our blog post, Eviction Notice in South Africa: How To Legally Evict Tenants.