Cancellation of Lease vs Eviction

If you are renting out properties to people then this post is for you. Firstly, you cannot just evict someone. In order to evict someone you have to obtain a court order first. And in order to do so you must first cancel the lease agreement. A lot of firsts, I know. Let's look at how to go about the cancellation of the lease.

Eviction

According to legislation you cannot just evict someone, not even a squatter. Eviction can also be a lengthy process, so if you want to engage in this process, be aware of that. A court order must be obtained and whenever that has to happen it can take time. Before you can even get to the eviction process you must first cancel the lease agreement.

Lease agreement

A lease agreement can be either in writing or oral, but as with all agreements it is always better to have it in writing. If you have a written lease agreement make sure you are acquainted with the breach clause and the domicilium et executandi clause. (And if you don't have a written lease agreement, I strongly urge you to get one). These clauses will tell you under what circumstances you can cancel the lease as well as how and where the notices must be served. If your lease states that it must be sent via registered post, then you must do so.

It is also important to pay attention to the time periods and to how to count the days in the time periods. Short notice could mean that the court will not grant you your eviction later.

Letter of demand

If there is outstanding rental you will have to serve a letter of demand first. This letter must set out what the amount is that is outstanding as well as the time period in which it must be paid before further action is taken. It is important to also state what further action will be taken when payment is not made, for example the lease will be cancelled and the tenant sued for arrears. Simply stating that legal action will be taken is too vague and the court might not accept it.

Cancellation letter

After that, or if the lease was cancelled for another reason (other than outstanding rental), a letter of cancellation must be served. This letter needs to specifically confirm that the lease is hereby cancelled and that the occupants must vacate. It must further also state that failure to vacate will result in the eviction process commencing.

After all of this make sure you cease all communication with the tenants. This will avoid them claiming that your communication was seen as a reinstatement of the lease. Rather obtain legal representation and have your lawyers communicate with the tenants further. It is also a good idea to obtain a lawyer right after cancelling the lease so they are ready to start the eviction process should the tenants not move out by the given time.

Consumer Protection Act

In certain cases the Consumer Protection Act 68 of 2008 will be applicable. Even if your lease agreement states that it is not applicable, it still will be since legislation trumps contracts. There are, however, two exceptions where the Consumer Protection Act does not apply:

1. Where the lease is concluded between two juristic entities (companies, closed corporations, trusts, etc) or where the lessee/tenant has an annual turnover or asset value of more than R 2 million.

2. Where the lessor is not leasing the property in the ordinary course of his/her business.