Definitions: eviction, termination of lease, and foreclosure

For clarity on home buying laws, see below for the definitions of these terms, and how they affect tenants.

Eviction

An eviction happens when a person is legally forced to leave the property he/she is staying on. According to the Constitution, no person’s property may be taken away from him/her and that no person may be evicted from his/her home without a court order. This means that a landlord/landlady (person in charge of a property) must apply to court before evicting a person from the property.

The law does not permit arbitrary evictions. Section 26 of the Constitution says that no one may be evicted from their home, or have their home demolished, without an order of court made after considering all the circumstances. A court must consider how the eviction will affect the people who will be evicted, and evictions cannot be done without valid reason.

For a person to be evicted from a property, he/she must be considered to be an unlawful occupier. The following behaviours describe an unlawful occupier:

  • Staying on a property without the landlord’s consent
  • Staying on a property without having any right in law to do so
  • Not being considered an occupier in terms of any other law

When a landlord cancels or withdraws his/her consent previously given to an occupier to stay on his/her property, the occupier is then considered unlawful. There are numerous other instances of unlawful occupiers, such as squatters and default mortgagors (mortgagors who fail to perform an obligation secured by the mortgage).

Termination of lease

Not to be confused with an eviction, a termination of lease means that the landlord ends the rental agreement and asks the tenant to vacate the rental property. A tenant can have their lease terminated and move out without being evicted. Eviction involves the actual court process and lawsuit to have a tenant removed from the property if they fail to leave.

According to the Rental Housing Act of 1999, a landlord may terminate a lease if the tenant is in breach of contract on grounds that do not constitute unfair practice. The landlord has to give the tenant at least 20 working days to fix the situation, depending on the severity of the breach in question, after which the landlord may terminate the contract.

Foreclosure

Commonly known as “repossession” in South Africa, foreclosure occurs when a homeowner fails to pay his/her mortgage. It is a legal process in which the owner forfeits all rights to the property.

When the bank learns that the homeowner’s financial difficulties are beyond the help of debt rehabilitation, the bank will instruct the Sheriff of the Court to deliver a summons to the homeowner, which will notify him/her that the home is going to be auctioned off at a Sheriff’s auction. In order to counteract the homeowner’s loan or bond, the bank will set the value at a market-related price, which is usually far less than the true market value.

In South Africa, all home repossessions are performed through a court. This makes it a judicial process.

Sending an eviction notice

A landlord can submit an application for an eviction order to the court to evict an unlawful tenant from his/her property. A tenant unlawfully occupies a residence when the lease agreement has ended – whether by cancellation due to a breach by the tenant (e.g. not paying rent) or by due notice given in terms of the lease.

In accordance with the Consumer Protection Act (CPA), a landlord must give a tenant at least 20 business days’ notice before cancelling a lease agreement to provide the tenant with the opportunity to rectify the breach (e.g. to pay the rent).

Landlords wishing to approach the court to obtain an eviction order are advised to apply in good time and to hire an attorney who is well-versed in the legalities of evictions. If the proper legal procedures are not followed the process of securing an eviction order can be long and expensive.

Writing up the eviction notice

A tenant can easily argue in court that his/her landlord did not give them adequate notice to begin eviction proceedings. Thus, the landlord must be able to document sending the notice for use as proof in court; this can be done by sending it to the tenant through certified mail.

The landlord must look at the lease and send it during the allocated period, such as after the tenant is over three days late with the rent. The landlord should type up the eviction notice and include the property address, landlord and tenant details, and the particulars for the reason of the eviction (e.g. rent overdue, anti-social behaviour, etc).

It is advisable for the landlord to print four copies of the eviction notice, so that he/she can post one on the property, mail one using certified mail, keep one for his/her personal records, and to have one to give to the court.

See this related article: Who can issue an eviction notice in South Africa?