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When can you evict a family member?

Mar 24 2019 17:00
Carin Smith

Circumstances may arise where the person in charge of the property needs to cancel the lease or start the eviction process, says attorney Simon Dippenaar.

A tenant who is also a family member could, for instance, be an adult child who hasn't left home yet, or as distant as a cousin of a late father who is occupying a property through some long-forgotten verbal agreement.

The first thing to do is to ask the person to leave. If that doesn't work, or if the relationship with the family member is already strained, the next question is whether there is a lease.

If the family member holds a standard tenancy agreement, the process is no different than for any other tenant, explains Dippenaar.

The first step is to cancel the lease. If there are no grounds for cancellation - for instance, if rent is paid on time and the property is well maintained, you must wait for the expiry of the lease and give the tenant notice to quit on the basis that you do not intend to renew the lease.

There are statutory notice periods you must adhere to. Only if the tenant then refuses to vacate the property can you initiate the eviction process to secure the eviction.

If there is no written lease, there may still be a verbal lease or an implied agreement.

Adult children living at home

What if an adult child has been allowed to stay at home, but now the parents want their privacy back?

Dippenaar says that, if the adult child has contributed to household costs, such as utilities, this could be considered rent.

If the adult child does not respond to a reasonable request to move out, the parents will have no choice but to initiate formal eviction proceedings.

Owner passing away

According to Dippenaar, it often happens that a property owner passes away and a family member resides in the home.

Where the family member is a spouse the inheritance will be dealt with through the will or the laws of intestacy - in the absence of a will.

In the case of eviction of a family member other than a spouse, both the lease and the will may have an impact on the final outcome.

An elderly sibling of the deceased owner may have a lease granting tenancy in perpetuity, or the will may stipulate that the property cannot be sold until after the tenant's death. These documents must be consulted before considering eviction.

However, provided there are no provisions of this nature, the law gives the executor the power to dispose of the estate in accordance with the wishes of the deceased.

If there is a tenant, and the executor elects to sell the property, the tenant cannot be summarily removed from the property, but the executor has the right to cancel the lease and begin the eviction process if the tenant does not cooperate.

Abuse

If you suffer abuse at the hands of a family member who is your tenant and you can prove that imminent harm will be caused to you, you may be able to secure an urgent eviction, according to Dippenaar.

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