Basic Legal Principles of Landlord & Tenant: Eviction
The basic relationship between landlord (also known as the the lessor) and tenant (also known as the lessee) takes the form of a lease agreement (oral or written) wherein the landlord agrees to let his/her property temporarily to the tenant in exchange for a rental to be paid at certain intervals, and the tenant agrees to hire the said property.
Each party to the agreement has rights and obligations at law. The landlord is generally obligated to grant the tenant undisturbed possession of the property, while the landlord has a right to be receive rentals and be compensated for any damage occasioned to the property during the tenant’s occupation. The tenant’s obligations include, but are not limited to, paying rentals at the stipulated intervals and ensuring that the property is properly cared for during the tenancy.
In the event that the tenant fails to honour its obligations under the agreement and further fails to remedy such breach of obligations, the landlord is entitled to apply for cancellation of the agreement and eviction of the tenant from his/her property. Eviction refers to the legal process by which a landlord may legally remove a tenant from the leased property. It is a prerequisite to any action or application for eviction that a valid cause exists for such action and/or that the lease has been lawfully cancelled by the Landlord. Landlords cannot evict tenants without a Court Order, and doing so is illegal and gravely frowned upon by the courts. The following instances amount to self-help on the part of the landlord;
- removing the tenant from the property by force;
- removing the belongings of the tenant from the property;
- turning off essential utilities to the property such as electricity or water
- changing the locks on the property; and
- harassing the tenant as a way to make them leave the property.
Eviction can be sought from the court via an application or action proceeding. With an action proceeding, the landlord files a Writ of Summons along with Particulars of Claim stating the chronological order of events and outlining the relief sought (being namely an order for eviction). Where the tenant elects to defend the matter, then the proceedings shall either proceed via summary judgment or trial. If the tenant fails or elects not to defend the matter, default judgement will then be issued by the registrar. Where the matter is referred to trial, both parties will argue their respective cases at the end of which the court will either grant the relief sought or dismiss the landlords action.
In an application proceeding, the landlord files a Notice of Motion and affidavits outlining the prayers and chronological order of events. The matter is then be set down for hearing before the judge, at which hearing a decision will be handed down. Where the court decides in the landlord’s favour, a court order will be issued directing the tenant to vacate the property. The amount of time within which the tenant is to vacate the property may vary, but it could be immediate.
In the unlikely event that a tenant refuses to vacate the premises after the order has been obtained, the landlord may engage a Deputy Sheriff to enforce the order. The Deputy Sheriff, assisted by the Botswana Police Service on some occasions, will physically escort the tenant out of the property, along with all their belongings.
Kefilwe Changu Chuma is a Junior Associate at Akheel Jinabhai & Associates in the Litigation Department. She is an admitted Attorney, Conveyancer and Notary Public of the Courts of the Republic of Botswana with an LLB from the University of Botswana.