A residential lease agreement is a legally binding contract between a landlord and a tenant, outlining the terms and conditions for renting a residential property, typically used for homes and apartments. It governs matters related to rent, security deposits, responsibilities of both parties and the use of the property for living purposes.

A commercial lease agreement, on the other hand, is a contract between a landlord and a business entity or tenant, detailing the terms of leasing a commercial property, such as office space, retail stores, or industrial properties. Unlike residential leases, commercial leases often involve longer terms, higher rental amounts, and more complex provisions to address the specific needs of businesses, including maintenance, build-out requirements, and considerations for the use of the property for commercial or industrial purposes.

A fixed lease agreement specifies a set duration for the lease, typically for a year or more. Both the landlord and tenant commit to this period, and the terms and rent are generally fixed throughout the lease. It offers stability but may be less flexible for either party to terminate early.

A month-to-month lease agreement doesn’t have a specified end date and renews automatically each month. It provides flexibility, allowing either the landlord or tenant to terminate the agreement with proper notice, usually on calendar month. Rent and terms can be adjusted more easily.

Renting without a formal agreement means the arrangement is informal and might be based on verbal understandings or past practices. This is the least secure option for both parties, as rights and responsibilities may not be clearly defined, leading to potential disputes.

It’s generally recommended to have a written lease agreement in place to clarify terms, protect the rights of both parties and avoid misunderstandings.

If the notice period expires without the tenant rectifying the breach, the landlord has the option to cancel the lease agreement by sending the tenant a Letter of Termination, commonly referred to as a cancellation letter. The tenant is obligated to vacate the property by the date set out in the Letter of Termination.

A Founding Affidavit is a legally sworn written statement that is submitted to the Court by the party instigating the legal proceedings, which is usually the landlord. This document holds a central role in the eviction proceedings and outlines the facts and circumstances surrounding the eviction. It includes details concerning the tenant, the rental agreement, breaches of the agreement (such as non-payment of rent or other violations), and any attempts to resolve the issue through negotiation or communication.

A Notice of Motion serves as the landlord’s formal application to the Court to obtain an order for the tenant’s eviction. It specifies the specific relief or order that the landlord is seeking from the Court, which is usually an eviction order. This section references the Founding Affidavit as the supporting document containing the details of the eviction case. Once the Notice of Motion is filed with the Court, a copy is typically served to the unlawful occupant, affording them an opportunity to respond to the eviction application by filing opposing affidavits and presenting any legal defenses they may have.

“Ex parte” is a Latin term that means “on behalf of one party” or “by one party.” An ex parte application is one in which only one party (usually the Applicant or the landlord) appears before the court, and the other party (usually the Respondent or the unlawful occupant) is not present or given notice of the Ex parte proceedings.

An Ex parte application in the context of eviction proceedings is one in which the Applicant, or in this case, the Landlord, approaches the Court for an order authorising the content and form of a further eviction notice which must be served upon the occupant in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE Act). This notice is referred to as a Section 4(2) notice, which outlines the requirements and procedures for notifying occupant about their impending eviction. This Notice must be served to the occupant no later than 14 calendar days before the hearing, by the Sheriff. It must also be served to the relevant Municipality.

A Notice of Set Down is a formal legal document used to schedule a Court hearing related to an eviction case. This notice informs all involved parties, including the occupant, and the Court, about the date, time, and location of the Court hearing where the eviction matter will be addressed.

An Answering Affidavit is a legal document filed by the Respondent (the Occupant), in response to a Court case. It is used to provide the party’s response to the allegations, claims, or arguments made by the opposing party (the Landlord) in their founding affidavit.

A Replying Affidavit is typically submitted by the party who initiated the legal proceedings (you) in response to the answering affidavit submitted by the opposing party (the occupant).

A Court Order is a legally binding directive issued by a Court of Law that commands a specific action, such as requiring an unpaying tenant to vacate a property. Court orders are enforceable and play a crucial role in the legal system to resolve disputes, ensure compliance with the law, and protect the rights and interests of individuals or entities involved in legal proceedings.

The cost of an unopposed eviction ranges between R15 000 and R30 000, and an opposed eviction can cost up to R100 000.  

The length of an eviction process depends on the cooperation of the tenant. An unopposed eviction usually takes between 8 to 12 weeks to be finalised. However, if the tenant opposes the eviction, it can take much longer. 

Perjury is knowingly making false or misleading statements while under oath that intentionally deceive the court. Since judges make decisions based on witness testimonies and evidence, lying under oath can cause significant harm to parties in a legal case.

It typically happens that a landlord wants to evict their troublesome tenant themselves “just to get rid of them”. It is imperative for a landlord not to take rights into their own hands and rather seek legal eviction assistance.

Here is a list of some actions that a landlord may not take during an eviction process:

• A landlord may not change the locks preventing the tenant’s access to the property.
• A landlord may not switch off the tenant’s use of basic utilities such as water and electricity.
• A landlord may not enter the premises without prior notice to the tenant.
• A landlord may not remove the tenant’s possessions from the premises as compensation for any arrears.
• A landlord may not behave in a threatening way toward the tenant regardless of how the tenant reacts to the news of the eviction.

Although a landlord could feel that they aren’t allowed to do anything and the defaulting tenant can still enjoy their stay in the property, it is best to rather walk within the legal lines.

If the landlord does any of the above, it is seen as spoliation. Spoliation is the interference or disturbance of possession, even if the possession is illegal possession, which is the case with an illegal occupant. The risk with this is the tenant would be allowed to go to Court and they will be successful with a spoliation order, meaning that the landlord will be ordered by a Court to cease the interference with possession.

But, do not worry, AutoEvict will assist you each step of the way, giving valuable advice and guidelines. Should you wish to speak to an attorney for more insight, please feel free to reach out to our Legal Eviction Partner, SSLR Inc.

AutoEvict is based on South African Law and can only be used for properties situated within the borders of South Africa.