WHY PROPER DOCUMENTATION CAN MAKE OR BREAK AN EVICTION APPLICATION

When a property owner is faced with a problematic tenant, their first instinct is often to focus on the end goal: obtaining an eviction order. While that objective is important, the process followed to achieve it is equally critical. Under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (“PIE”), a tenant or occupier cannot be removed by a landlord without a court order, and no court will grant such an order unless the landlord can establish the necessary facts through proper evidence.

This is where most eviction applications either succeed or fail. Not with courtroom drama or menacing phone calls, but in details contained in the necessary documentation.

South African Courts approach eviction applications with particular care because section 26(3) of the Constitution provides that no person may be evicted from their home without an order of court made after considering all the relevant circumstances.

The Court Requires Evidence

Some landlords may find it surprising that a Court may not simply grant an order for the eviction of a tenant because they “are not paying” or “won’t leave”. The Court must be satisfied that the occupier’s right to occupy the property has lawfully terminated and that an eviction order would be just and equitable in the circumstances. This determination is made based on evidence, which means that every step of the case, from the conclusion of the original lease up to the final notice of cancellation, must be backed by a dependable and compliant paper trail. If a landlord cannot provide the papers to the Court’s satisfaction, the case could collapse, and valuable time and money may be squandered.

What “Proper Documentation” actually means

A strong eviction case is built upon a foundation that is laid long before the steps of the Court are approached. The core documents upon which an eviction application is typically founded include:

1. The signed Lease Agreement: this establishes the tenant’s initial right of occupation and the terms of such occupation, such as the rental payable, the tenant’s duties, what classifies as breach, the grounds for cancellation, etc. It is absolutely crucial that this document delineates the terms of the tenant’s occupation clearly.

• A record of the breach of the Lease Agreement: should rent fall into arrears, a clear schedule showing such arrears and which payments are missed is very important. Factual records of what happened, and when, are required.

• The Notice of Breach and opportunity to remedy: Before most leases can be cancelled, a tenant must be given written notice of the breach, and an opportunity to remedy such breach. A verbal warning will not suffice.

• The Notice of Cancellation: Should the tenant fail to remedy the breach, a separate and clearly worded notice expressly cancelling the lease, and confirming that continued occupation is unlawful, will be required. This document is usually where eviction applications experience the most strain, as vague or incorrectly timed cancellation notices are regularly the reason that eviction applications are dismissed.

• All correspondence with the Tenant: Emails, WhatsApp messages, letters, etc. that show a consistent and honest account of what was communicated between the tenant and the landlord. Courts take the full picture into account when considering eviction applications, including whether the tenant was treated fairly.

• Proof of service: A landlord should be able to demonstrate that all notices were delivered in accordance with the lease agreement and any applicable legal requirements. This can usually be achieved by delivering said notices at the domicilium citandi et executandi (physical or email address) of the tenant, which any good lease agreement should have a clause for.

Why this can frustrate so many landlords

Property owners/managers often manage the breach of a lease agreement informally at first: a phone call here, a text message there, and a final warning given in person. This is understandable, but the day when the matter eventually goes to Court, informal communication will be very difficult to prove, and omissions in the sequence of events will provide the tenant’s legal team with opportunities to argue that the proper process was not followed.

Since the PIE Act requires the Court to also take the personal circumstances of the tenant into account, any procedural weaknesses or missteps in the process and documentation can give the opposing side an opening to delay the process or argue against eviction altogether.

The real cost of getting it wrong

A poorly documented case rarely just “loses” cleanly. More often than not, the matter may be postponed, documentation needs to be amended, or Court time and resources are wasted. All of this means that legal costs accumulate, the tenant remains in occupation, and more monthly rental income is lost. The financial consequences can be significant.

Get it right from the start

The good news is that a failed eviction application is preventable. With the right guidance and documentation from the outset, an eviction case can move through the Court as smoothly and quickly as the law allows. This means: proper leases, correctly worded notices, and disciplined record-keeping.

“It is poor drafting and absence of clarity which encourages those who wish to undermine the rule of law.”  – Jamela A. Ali (Former Principal Parliamentary Counsel)

Disclaimer: This article is intended for general information purposes and should not be accepted as legal advice. You are advised to seek specific legal advice based on your specific circumstances.

Prepared by Ruan Hogendoorn from Bruno Simão Attorneys.