Is this residential eviction legal? Is the right process being followed? (Eviction – Part 2)

residential eviction

In this blog post, we will outline the basic structure of how a residential eviction should happen. Eviction has to happen according to PIE (Prevention of Illegal Eviction from and Unlawful Occupation of Land Act). Whether you are a tenant or a landlord, this post could help you. As a tenant, this post could help you to identify whether your landlord is acting unlawfully in the way he or she evicts you. As a landlord, let this post be a reminder to you to follow the law carefully as you carry out an eviction so as to protect yourself.

This is part 2 of the blog series. Part 1 discusses some of the general questions related to PIE, the law that deals with residential eviction.

The residential eviction process: basic outline

Assume we have the owner of a property and the occupant of that property. The owner wants to evict the occupant. As a starting point, the owner who wants to evict must legally terminate the lease. The reason for cancelling the lease must be a legal one. For example, the lease agreement must have expired, or there should have been a material breach of contract by the occupant. It is important that the cancellation follows the procedure set out in the contract if any.

The next step is for the owner to apply to the court to begin the eviction proceedings. At this stage, it is without the occupant. The result of a successful application is for the court to order notice of the upcoming eviction proceedings to be served upon the occupant and municipality. This notice must be served in the form of a notice of motion and a supporting affidavit. It is the job of the sheriff of the court to serve this notice. The municipality must be included because it has an interest in the outcome of the case. This notice must be served at least 14 days before the court date.

In the notice sent to the occupant, the following information has to be present. The notice has to state that proceedings are being instituted in terms of the relevant section of PIE. It must inform the occupant of the date and time that the court will hear the eviction proceedings. It must set out the reasons for the proposed eviction. It must state that the unlawful occupier is entitled to appear before the court and defend the case and may, where necessary apply for legal aid.

The occupier is then allowed to oppose the eviction and file an answering affidavit. The owner has a final opportunity to respond with replying papers. In this process, there is a chance for resolution of the matter without going to court.

If no resolution can be found before the court date, then the matter must go to court. The matter will be argued before the court, and it is the court who will then decide the matter.

Need help?

If you require any assistance in a residential eviction matter, please do not hesitate to contact us at info@gunstons.com.

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