During a time where it is not uncommon for tenants to fall into arrears with their monthly rental payments, many landlords are contemplating the institution of formal legal proceedings against their tenants, in particular, eviction proceedings. 

Once a tenant has breached the lease agreement due to non-payment of rental or otherwise, the landlord is entitled to terminate the lease agreement after providing the tenant with the requisite notice. This will place the tenant in unlawful occupation of the premises.

In instances where the property is utilised as a dwelling in an urban area, the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (“PIE”) will be applicable and must be strictly complied with in order to effect a lawful eviction. 

However, taking into consideration the ever changing regulations published in the government gazette from time to time, many landlords are uncertain as to whether you are able to evict a tenant during the COVID-19 pandemic and national state of disaster.

In terms of the current lockdown regulations, which are in force at the time that this article is written, evictions are permissible. Naturally, a person may never be evicted from their place of residence without a court order authorising the eviction. 

However, it must be born in mind that a court may suspend or stay the eviction order until such time as the state of disaster has come to an end. However, if the court is of the opinion that is not just and equitable to suspend the eviction order, the sheriff of the court may proceed with the eviction. 

In deciding whether to suspend the eviction order, the court will take into consideration the restriction of movement of people, the impact of the disaster on the parties and the prejudice caused to any party by delaying the execution of the order, amongst other relevant factors. 

In addition to the procedural requirements imposed by the PIE Act, the court may also request a report from a member of the Executive (a branch of government) regarding the availability of emergency accommodation or quarantine facilities, in so far as that is necessary.

It is important to reiterate that no-one should take the law into their own hands and evict a person from their place of residence without following due process. Any person who unlawfully evicts an occupier without the authority of a court order is guilty of an offence and liable on conviction to a fine, or imprisonment for up to two years.

Taking into consideration the intricate notices and court applications that are required in order to successfully and lawfully evict a tenant during the COVID-19 pandemic, we would suggest consulting with an attorney as soon you experience any difficulty with your tenants in order to ensure proper compliance with all applicable laws. 

Burrows Attorneys

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