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EVICTIONS FROM RESIDENTIAL PROPERTY

So, let's have a look at and discuss what an eviction is and who may be evicted.

In terms of PIE the term "evict" means to deprive a person of occupation of a building or structure, or the land on which such a building or structure is erected, against his or her will and the term "eviction" has a corresponding meaning.

We regularly consult with clients who purchased a property, but are unable to move in due to the previous occupants' refusal to move out. Should you find yourself in a situation where the current occupants refuse to move out, it is important to understand your rights as the new owner of the property. It is also important to understand your rights as a landlord where tenants refuse to pay rent.

What would usually follow scenarios such as these, is an application for eviction. This process is governed by the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE). The purpose of this Act is to prohibit unlawful eviction and also to provide for procedures of the eviction of unlawful occupiers and therefor no one can be evicted from his or her home without a court order.

So, let's have a look at and discuss what an eviction is and who may be evicted.

In terms of PIE the term "evict" means to deprive a person of occupation of a building or structure, or the land on which such a building or structure is erected, against his or her will and the term "eviction" has a corresponding meaning. "Building" or "structure" includes a hut, shack, tent or similar structure or any other form of temporary or permanent dwelling or shelter.

Only unlawful occupiers may be evicted. An unlawful occupier in terms of PIE means a person who occupies land without the express or tacit consent of the owner or person in charge, or without any other right in law to occupy such land, excluding a person who is an occupier in terms of the Extension of Security of Tenure Act, and excluding a person whose informal right to land, but for the provisions of PIE would be protected by the provisions of the Interim Protection of Informal Land Rights Act. I will be discussing these acts in a separate post at a later stage.

Now that we know wat an eviction is, and now that we know who may be evicted, let's look at who is allowed to initiate eviction proceedings and what the process is that needs to be followed.

The only parties who may initiate eviction proceedings are the owner of the property, the person in charge or an organ of state. For purposes of the Act "owner" means the registered owner of the land, including an organ of state. "Person in charge" means a person who has or at the relevant time had legal authority to give permission to a person to enter or reside upon the land in question.

In order to evict an occupier or tenant, the occupation first needs to be unlawful. Where a tenant fails or refuses to pay rent to the landlord, the landlord will have a claim for arrear rental as well as a claim for eviction as the tenant is in breach of the lease agreement. I will be discussing the landlord's available remedies in respect of arrear rental in a separate post.

The landlord firstly needs to cancel the agreement by way of a cancellation letter or notice in respect of the lease agreement and only once the agreement has been cancelled will the landlord be able to initiate the eviction process.

In the event that the lease agreement makes provision for a breach clause, the agreement needs to be cancelled in terms of the breach clause. The breach clause may fall in the scope of the Consumer Protection Act, in which case it may be necessary to give the tenant 20 business days' notice. Should the incorrect amount of days be provided, your notice may be invalid.

Only after the notice period has expired and the landlord gave a written notice to the tenant, cancelling the agreement, will the tenant be in illegal occupation of the property. The landlord will however not be able to cancel the agreement if the tenant rectifies the breach within those 20 days.

In both instances where the tenant falls in arrears on his rent as well as the case where an occupier becomes an unlawful occupier as a result of a sale in execution, a letter of demand affording the tenant or occupiers a calendar month's notice to vacate the property needs to be delivered to them by way of either registered post or the sheriff.

Once the calendar month has lapsed the owner or landlord has to approach the court with an application in terms of section 4(2). This application needs to be served personally on the unlawful occupants by the sheriff which can cause eviction applications to become costly and lengthy.

Section 4(6) stipulates that if the unlawful occupier has occupied the land in question for less than 6 months at the time the proceedings are initiated, a court may grant the order if it is of the opinion that it is just and equitable to do so after considering all the relevant circumstances, including the rights and needs of the elderly, children, disabled persons and households headed by women.

Section 4(7) determines that if the occupier has occupied the land in question for more than 6 months at the time that the proceedings are initiated, a court may grant an eviction order if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances, including, except where the land is sold in a sale of execution pursuant to a mortgage, whether land has been made available or can reasonably be made available by a municipality or organ of state or another land owner for the relocation of the unlawful occupier, and including the rights and needs of the elderly, children, disabled persons and households headed by women. If the court is satisfied that all these requirements have been complied with and that no valid defence has been raised by the unlawful occupier, it must grant an order for the eviction of the unlawful occupier.

It is evident from the discussion above that the court has a discretion to refuse an application for eviction, should it be satisfied that the requirements of section 4(6) and 4(7) have not been met.

Eviction applications may be brought on an urgent basis when:

  1. There is a real and imminent danger of substantial injury or damage to any person or property if the unlawful occupier is not forthwith evicted from the land;
  2. The likely hardship to the owner or any other affected person if an order for eviction is not granted, exceeds the likely hardship to the unlawful occupier against whom the order is sought, if an order for eviction is granted;
  3. And there is no other remedy available.

Now let's look at illegal evictions

An eviction is illegal when:

  1. You are residing lawfully on the property;
  2. There is no valid court order allowing an eviction;
  3. A sheriff is not present at the time of the enforcement of the eviction order;
  4. The owner or landlord intimidates or threatens you to leave, changes the locks or cuts of the services to the property without a court order (this will be discussed under spoliation at a later stage);
  5. If you lodged a complaint about an unfair practice, your landlord is not allowed to evict you even if they have obtained a court order. They are only allowed to evict you after the complaint has been decided, or after three months have passed, whichever comes first;
  6. If you are removed from the property and charged with trespassing.

Should you however face an illegal eviction, it is best you seek legal advice and assistance as these types of situations may become tricky and complicated to deal with.

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