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Eviction by landlord

Often, a lease will allow a landlord to evict a tenant without notice if the rent is in arrears. However, if the tenant is in breach of any other term of the lease, under the Landlord and Tenant Act 1936 (SA) , reasonable notice of the breach must be given to the tenant. Reasonable notice is usually at least ten or fourteen days. The notice must be in writing, specifying what the breach is. The notice must also state what must be done to rectify the breach and at what time. The notice must be signed by the landlord. Once the landlord takes possession of the premises, a notice to quit addressed to the tenant should be attached to the front door of the premises. The tenant can then negotiate to continue to occupy the premises on whatever terms can be agreed.

Relief against forfeiture

It is possible to apply to a court for relief against forfeiture of a lease. This involves an application for an injunction supported by an affidavit seeking an order that the landlord allow the tenant to move back into the premises. It is usually necessary to prove that the landlord failed to give reasonable notice of the breach (except for arrears of rent), that there was no breach, that the breach is trivial or that the breach will be rectified promptly. Relief will not be given simply because the tenant will suffer undue hardship by losing the premises.

Seizing goods

A lease of premises may include a clause allowing the landlord to recover arrears of rent by issuing a warrant to seize goods owned by the tenant which are in the premises. The procedure of seizing the goods are contained in sections 13-46 of the Landlord and Tenant Act 1936 (SA). The landlord can issue the warrant without giving notice to the tenant. The warrant can only be for unpaid rent, not other charges owed by the tenant. The warrant can be written by the landlord or a lawyer. It must be served on the tenant or left in a prominent position in the premises. Once served, the tenant's goods can be seized immediately.

Usually a licensed process server will seize the goods for the landlord and prepare an inventory. The goods should be sold by auction and a reasonable attempt must be made to obtain a market price for the goods. It is not possible to challenge a warrant properly executed by a landlord. However, it may be possible to apply to a court for an urgent injunction to delay the warrant if it can be proved that arrears will be paid promptly, that there are no arrears or that there is a counter claim against the landlord. A warrant cannot be delayed for causing hardship to the tenant.

If someone other than the tenant has goods in the premises and wants to recover them the person must complete a sworn declaration giving details of ownership and then serve this form on the landlord [Landlord and Tenant Act 1936 (SA) s 22].

    Eviction by landlord  :  Last Revised: Tue Jul 3rd 2012
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