Commercial evictions differ substantially from residential evictions.
The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, No 19 of 1998, and the Extension of Security of Tenure Act, No 62 of 1997, is not applicable to commercial evictions. The common law dictates commercial evictions.
It is therefore of utmost importance that a lease agreement regarding commercial property be properly drafted and the corrects processes are followed otherwise evicting a tenant from your commercial property may become a long and cumbersome drawn out process.
The common law eviction process is available to an owner or landlord in the following instances:
- Property used by occupiers for commercial purposes (e.g. offices and factories);
- Agricultural land which is not used by occupiers for residential purposes.
It is thus therefore the use of the property that is the determining factor and not the zoning of the land.
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. The provisions of the lease agreement regarding jurisdiction of instituting action is therefore important.
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 in the event of cancellation. 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 of the CPA applies, the landlord must give 20 business days written notice of a breach of the lease agreement. 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.
Once a tenant is in breach it is essential to act swiftly and notify the tenant to remedy their breach accordingly. If proper action is taken the problem tenant can be evicted as soon as possible and in effect limit the damage effected on the landlord.