The two eviction procedures that are most frequently used are residential and commercial, each of which has a unique eviction procedure. The eviction procedure is determined on the property’s kind of use. Residential properties are those where people live, and commercial properties are those where people conduct business. However, the common denominator between the two processes is that a court order is required to legally evict the tenant from occupying the premises, should a tenant refuse to voluntarily vacate the premises after cancellation of the lease agreement. For the purposes of this article, the process of the commercial evictions will be the focal point.
POINT OF DEPARTURE: THE CONTRACTUAL RELATIONSHIP
The lease agreement is a form of contract which is concluded between the landlord and tenant and is an agreement between the parties, binding them in a legal commitment. This agreement outlines the interest of both the landlord and tenant and their duties towards one another. Properly drafted, it ought to facilitate amicable ties between the parties thereto. Commercial leases are not particularly governed by legislation, unlike residential tenancies, and thus it is essential to have a professionally written agreement to best prevent misunderstanding and conflicts and to afford protection to both parties.
The eviction process of commercial premises falls within the jurisdiction of either the Magistrates Court or the High Court and is governed by common law, the lease agreement as well as the Consumer Protection Act 68 of 2008 which applies under certain conditions.
1. The cancellation of the lease agreement
In the event that the tenant materially breaches the lease agreement or upon expiry of the lease agreement, if the landlord wishes to evict the tenant the lease should first be cancelled.
In some instances, a commercial tenant may be protected by the CPA. Section 14 of the CPA would apply where there is a fixed term lease and the Landlord must provide the tenant with a written notice of their intention to cancel the lease due to the breach, not less than 20 business days before the intended cancellation date.
In terms of Section 14 scenarios, should the tenant however fail to remedy their breach within the 20-day notice period, the Landlord may proceed to cancel the lease agreement and afford the tenant a date by which to vacate the premises.
Section 14 does not apply in the following situations:
- If the tenant is an organ of State (municipality, state department etc);
- If the landlord and tenant are both juristic persons;
- Once-off leases; and/or
- If the tenant is a juristic person with an income/turnover above R2 million per year.
In the above-mentioned circumstances the 20 business days’ notice of a breach is not required before being able to cancel the lease.
2. The legal proceedings
Should the tenant however fail to vacate voluntarily after cancellation of the lease, the landlord can use the legal eviction route which is instituted by way of Summons. The landlord’s right to safeguard their commercial property income takes priority in commercial eviction proceedings. Additionally, to evicting the tenant, the commercial landlord is entitled to claim for the arrear rental, the damages suffered and reinstatement costs where applicable in the Summons.
As contract law is applied to the commercial landlord-tenant relationship, it is essential that a properly structured lease agreement is concluded to best prevent misunderstanding and conflicts and to afford maximum protection. At Heyns and Partners, we do not only offer tailor-made services to assist and guide you throughout your commercial eviction, but we also offer services to draft and revise your commercial lease agreement to ensure the parties are sufficiently protected.