It is most important to note 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 wants to evict a person using his/her property for housing purposes (e.g. staying in his/her flat), they must use the procedure provided for in the Prevention of Illegal Eviction from and Unlawful Occupation of Property Act (PIE Act).
Landlords must be aware that unlawful occupiers have rights according to PIE and the Constitution. Regarding PIE, an eviction can only be authorised by a court after taking into account the rights of all people involved.
The PIE Act requires a court to consider:
- Whether the occupiers include vulnerable people (e.g. the elderly, people living with disabilities, and children)
- The period of occupation
- Whether the occupiers will be homeless as a result of the eviction, in which case the state must provide alternative accommodation if the occupiers cannot afford to do so.
There are various aspects of a lease agreement, such as deposit, lease period, and rent. With each area comes different rights, both of the landlord and the tenant. The following explain the rights of the tenant.
- Usually, a landlord will request the tenant pays a deposit up front in case of damages. Under tenant’s rights, if the landlord is holding the deposit, it must be refunded with interest. The landlord cannot use the deposit to upgrade the property when the tenant vacates.
- After the outgoing inspection, when the lease is ending, and it is determined that there are no damages, the deposit must be refunded to the tenant within seven days.
- When it comes to rent, the tenant has a right to receive a receipt for all monies paid to the landlord, as well as a rental invoice which breaks down the different costs (rent, water, etc.).
- The tenant has the right to cancel a lease early by giving the landlord 20 business days’ notice; the tenant will be liable for a reasonable cancellation penalty.
- Regarding a tenant’s credit profile, he/she has the right to accurate information being held on his/her profiles with the credit bureaus. The tenant has the right to dispute any inaccurate information that a credit bureau may hold on his/her credit profile.