The term “Eviction Notice” is very often used by our clients and the media. This term is often confusing and is very likely a result of American Law-based television shows. An Eviction Notice in the American Legal System is something that does not exist in South African Law. In South African Law, a letter placing a tenant in breach of a lease term and then a further letter cancelling the lease agreement is standard practice. In the latter, demand is made that the tenant vacate the property and is very likely the letter that’s being referred to as an “Eviction Notice” in other legal systems. It is crucial to understand that this is neither an eviction order nor a document that has any other power, other than to cancel the lease agreement, so that eviction proceedings may commence. Unfortunately therefore, the letter does not have any legal or authoritative power to throw the tenant out of the property, then and there.

Once legal eviction proceedings is embarked upon, it is done on either action, commencing with a summons or on application commencing with a Notice of Motion. A Summons or a Notice of Motion is again not an “Eviction Notice”, they are merely legal documents that initiate the eviction proceedings.

It is important to be aware of the implications of cancelling a lease agreement. A cancelled lease agreement is no longer in existence. Thus, the tenant’s occupancy has also been cancelled and he no longer has a legal right to stay in the premises. No barring this fact, the letter of cancellation does not predicate that a Sheriff can be sent to throw the tenant out, a court order must be obtained through the process established in above paragraph. Thinking that the cancellation letter is in fact an “Eviction Notice” could also lead to an unnecessary waste of time. Once cancellation has occurred, the tenant need not be granted a long period of time to vacate the property; in contrary the tenant may be requested to vacate the property immediately.

As long as the perception exists, that the cancellation letter is a legal “Eviction Notice”, owners may be under the impression that eviction may be enforced without any further legal action. It is advisable that once a cancellation letter is done, an attorney proceeds with an application for eviction immediately to shorten the time period that the property is not the envisaged income generating investment vehicle. Kindly contact us with any eviction related query and as always #happyrenting.

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