COMMERCIAL “COMMON LAW” EVICTIONS

To evict a tenant from your property in any given situation can be a cumbersome and drawn out process, especially if the lease agreement is not properly drafted and the correct processes not followed.

The so-called common law eviction available to an owner or landlord applies to:

• Evictions from property used by occupiers for commercial purposes (e.g. offices & factories). Therefore, even residential property not being used for residential purposes is also included;
• Agricultural land which is not used by occupiers for residential purposes.

It is therefore the use of the property that is the determining factor and not the zoning of the land.

Evictions from buildings/property used for residential/dwelling purposes fall under The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act No. 19 of 1998 or the Extension of Security of Tenure Act No. 62 of 1997. These Acts are not applicable to commercial evictions.

Commercial eviction proceedings may be brought by way of action or application proceedings in the High Court or by way of action proceedings in the Magistrate’s Court. Usually, the lease agreement will provide for Magistrate’s Court jurisdiction.

It is not a requirement in a commercial eviction that the lessor/landlord be the owner of the property. An agent can therefore also act as applicant, provided he/she can prove locus standi.

If a lease agreement has been concluded between the landlord and the tenant, the lease agreement must first be cancelled before eviction proceedings can commence. The lease agreement should provide for the process to be followed. If it is a fixed term lease, regard must be had to section 14 of the Consumer Protection Act No. 68 of 2008 (“the CPA”). If section 14 does apply, the landlord must give 20 business days written notice of a breach of the lease agreement (in most cases the tenant commits a breach by failing to make timeous payment of the rental amount.) The landlord can therefore only cancel the lease after expiry of the 20 day period and upon the failure of the tenant to rectify the breach.

Section 14 of the CPA does not apply in the following instances; therefore it will not be necessary to give 20 business days’ notice of a breach before being able to cancel the lease in these circumstances:

• If the tenant is an organ of State (municipality, state department etc.);
• If the landlord and tenant are both juristic persons (companies, cc’s etc.);
• Once-off leases;
• If the tenant is a juristic person with an income/turnover above R2 million per year.

As is evident from the above, once a tenant is in breach, it is vital to act quickly and notify the tenant to remedy their breach accordingly. If proper action is taken – within the legal framework of course- the problem tenant can be evicted as soos as possible and the property leased to a new (paying) tenant.