According to the Constitution neither a residential nor a commercial tenant may be evicted without a court order. In both cases, a court must be approached to obtain said order and only thereafter may the Sheriff be sent to execute a warrant of ejectment. Any eviction without a court order is illegal and will most certainly amount to spoliation. Spoliation, as we know, is a no-no and could lead to substantial legal costs and even more so, embarrassment. We have recently also been informed that landlords have been arrested for trespassing, on their own premises, in attempts to illegally have their tenants removed.

Residential and commercial property have their inherent differences. The greatest differences are based, not necessarily on the type of tenant, but the different legislative provisions governing the property schemes. With residential properties; the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, also known as PIE governs urban evictions. All urban residential property evictions must be done in accordance with PIE. The Act specifies precise time frames and procedures that need to be complied with before a court may grant an eviction. Commercial property evictions, on the other hand, are not governed by particular legislation; to obtain such an eviction only the court rules have to be complied with. This is why, we always say that, commercial property is the cowboy of the two.

And of course, now you ask, what is the effect of this? A residential eviction is thus costlier, since the court will be approached on at least two separate occasions, in terms of the prescribed process. All court papers must also be served by the Sheriff on the Municipality and the occupants personally. Once service has been successfully achieved, a time period of 14 days must lapse before the Court may grant the eviction order. Depending on the specific court you approach; from the time the first court papers are filed to the time the order is granted, the time period for the eviction can easily be between 6 to 10 weeks. In PIE evictions, the courts very rarely grant immediate eviction orders, but will rather allow the occupants between 2 to 6 weeks to vacate the property. Should they not vacate within the time period, the Sheriff may be called upon to “help” them vacate.

With commercial evictions, things are a little bit different; here’s where the cowboy element comes in. The court documents for a Commercial eviction are served by the Sheriff as well, but the rules relating to this service are less demanding. Once the time period to oppose the eviction has lapsed and no intention to oppose was filed, the court can immediately grant an eviction order, which is not possible in the case of residential evictions. An order for eviction from a commercial property can therefore be obtained much faster and without having to jump through the legislative hoops of a residential eviction.

As with vetting your tenant, choose your property wisely and if in doubt, feel free to give us a call at any time for advice. As always #happyrenting.

Effect of a sale on the mandate

Effect of a sale on the mandate

The effect of a sale on a management mandate agreement Is the purchaser of a property with a tenant in the premises duty-bound to perform in terms of the former landlord’s obligations towards the lease agreement, or in terms of a mandate in the case of a management mandate agreement? The lease agreement remains in […]

Court Dates

Court Dates

Obtaining court dates from the High Courts in Lockdown Level 1 As much as we, as legal practitioners, have got used to attending to court virtually and working with the new online court system, called CaseLines; the legal profession is still experiencing extreme difficulties. The latest court directives allow us to issue new proceedings at […]

RHA vs huur gaat voor koop

RHA vs huur gaat voor koop

 Does Section 4(5)(c) of the Rental Housing Act contradict the principle of huur gaat voor koop? The legal principle of huur gaat voor koop was established within Roman Dutch Law and has, since the adoption of Roman Dutch Law as the foundation of the South African legal system, been one of the cornerstone principles governing property […]

Property Rental – Level 3

Property Rental – Level 3

Why were these regulations declared unconstitutional by the High Court? What does this mean? On 2 June 2020 the High Court handed down a judgement in the matter of De Beer v COTGA. News of this judgement spread in the media and on social media like wildfire, with headings like “Lockdown Regulations Unconstitutional”; as much […]

Evictions During Level 4

Evictions During Level 4

LEVEL 4 REGULATIONS ON EVICTIONS The Alert Level 4 Regulations were released to the public explaining exactly what Level 4 will entail for the South African public. One of the regulations, specifically Regulation 19, deals with the prohibition of evictions and has a big effect on our property industry. The Regulation reads as follows: A […]

Withholding Rent During Lockdown?

Withholding Rent During Lockdown?

No regulations of any kind have been implemented to authorise tenants to refrain from paying rent. The global pandemic brought about by the COVID-19 virus has thrust South Africa into one of the most unfamiliar and uncertain times in our history, the likes of which never before experienced. Government has, in response to the virus, […]

Free Legal Advice

We post highly relevant property related legal advice and information on our blog and newsletters. Subscribe here to get notified via e-mail.

Free Legal Advice

Thank you! Check your inbox (or spam folder) to confirm subscription!

Shares
Share This