lawful evictions

lawful evictions
Housing is a vital and primary need for each person. As most of us acquire accommodation by lease or through home loans or even through state housing provided by municipalities, it is important to know your rights and what the correct procedure is for lawful evictions.

With the exclusion of farm land, lawful evictions from residential premises, buildings or structures thereon, which includes any hut, shack, tent or similar structure or any other form of temporary or permanent dwelling or shelter, is governed by the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, commonly known as the PIE Act.

Who has a right to evict?

The right to evict under the PIE Act is given to a registered owner of premises or to a person in control of the residential premises in question. Persons in control of residential premises include:

A lawful tenant
The executor administrating the estate which includes the premises
Any other agent acting on the lawful instructions of the owner
Who can be evicted?

People who can be evicted include the following people who remain in occupation of the premises:

Defaulting tenants whose lease agreements are terminated
Defaulting mortgagors whose bonds were cancelled and property sold in execution
Unlawful occupiers and squatters
Any other person who does not have the express consent of the owner or person in lawful control of the premises
What are the special considerations?

When dealing with eviction applications our courts are obliged to give special consideration to the elderly, children, people with disabilities and also households headed by women. All facts and circumstances of such persons must be highlighted to the court for the evaluation of such special considerations.

Lawful eviction procedure:

Step 1 – Eviction notice/demand

An eviction notice or demand serves to warn the occupant of the intended eviction and it usually provides the occupant 30 days to vacate the premises. It also affords parties the opportunity to negotiate settlement terms or terms and timeframes for vacating the premises. This letter may be served by the Sheriff of the Court, by hand at the premises or by registered post.

Step 2 – Court application for eviction

A court application by way of a notice of motion with a supporting affidavit, must be served by the Sheriff on the occupant and on the relevant municipality. This will set out the court appearance date and the dates when the occupant must file their opposing court papers if they intend to oppose the eviction application. The occupant must receive the court application papers at least 14 days before the court date.

Step 3 – Appearance in court for hearing of eviction application

A Court is obliged to consider all relevant facts relating to the eviction application at the appointed dated for hearing the application. Legal representatives of the parties will be afforded an opportunity to present oral and written legal arguments on behalf of each respective party. The Court will then through a Court Order, if the application is succesful, provide the occupant sufficient time to vacate which is ordinarily up to 1 month with a provision that should the occupant fail to vacate in that period, the Sheriff is authorized to remove the occupant and all belongings from the premises at the costs of the occupant.

Step 4 – Forced eviction of occupant by Sheriff

The Sheriff will first serve a copy of the Eviction Court Order on the occupants. The Sheriff will then usually be authorized to forcefully remove the occupants after the vacation date appointed by the court has lapsed. The Sheriff may also be authorized to obtain the assistance of the police where necessary and he may also be authorized to remove the belongings of the occupants including to demolish any erected structures. The Sheriff may take up to 3 weeks to execute the eviction Court Order after making necessary arrangements to evict the occupants.

Conclusion

Lawful evictions can take between 2 to 3 months to be concluded and they can become technical and even costly. A landlord, owner or a person in control who wishes to evict, and a tenant or occupant against whom eviction processes are being commenced, are in both instances advised to seek legal advice from an attorney specialising in evictions to ensure that the eviction process is lawful and carried out correctly. Following the correct lawful eviction procedure minimizes frustration, costs and potential further rental losses and avoids the need for conduct like changing locks, disconnecting utilities and even intimidating conduct, which in itself can result in legal action being taken by unlawful occupants against owners or landlords.

Eviction

Eviction

Evicting the Unlawful Occupier: Why the PIE is not always so tasty!
Posted on 02 June 2014

It is now the third month in a row the tenant has failed to pay his rental, and it doesn’t look like this tenant will ever be in a position to make up the outstanding rent. Can you quickly evict the tenant and replace him with a new one, or is it not quite that easy? What does our law say?

In our law the current procedure to evict a tenant is unfortunately not one that has been built for speed, and often appears to favour the unlawful occupier rather than the owner. The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (“PIE”), was enacted in 1998. PIE drastically changed the landscape in respect of evictions. PIE established a definite distinction between commercial property and residential property, with PIE only applying to residential properties.

According to PIE no person can be evicted from a residential property without a court order that enforces such eviction, and acquiring such court order can be time consuming as it can often take upwards of three months to obtain. When considering that every month you are suffering loss of rental, potential damage to property and you may have to incur legal costs, the costs related to this period can add up quite quickly.

Waiting for a litigious matter to be settled can be accepted as a ‘normal’ risk when renting out one’s property. However, sections 4(6) and 4(7) of PIE, add a further complication to the eviction process:

“4(6) If an unlawful occupier has occupied the land in question for less than six months at the time when the proceedings are initiated, a court may grant an order for eviction 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.

4(7) If an unlawful occupier has occupied the land in question for more than six months at the time when the proceedings are initiated, a court may grant an order for eviction 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 other 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.”

This essentially affords the courts a discretion to grant an eviction order or not. The relevant circumstances as given in these sections are the rights and needs of the elderly, children, disabled persons and households headed by women. This means that even though you are the lawful owner of the property you can still ‘lose’ the use and enjoyment of your property if the court finds that these or other similar circumstances are present.

Although PIE is intended in part to help protect these vulnerable and easily exploited groups, it does in effect mean that unlawful occupiers could stay in your property for an indefinite period of time in accordance with what the courts deem as being just and equitable under the circumstances.

PIE does make provision for urgent applications which can dramatically shorten the time to evict an unlawful occupier. In this regard section 5 of PIE determines as follows:

“5(1) Notwithstanding the provisions of section 4, the owner or person in charge of land may institute urgent proceedings for the eviction of an unlawful occupier of that land pending the outcome of proceedings for a final order, and the court may grant such an order if it is satisfied that-
(a) 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;
(b) 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; and
(c) there is no other effective remedy available.”

Although urgent relief can be obtained, this places a heavy burden of proof on the owner, and even more so when the vulnerable groups are involved whose hardship in the event of an eviction order being granted may outweigh that of the owner.

So what can a lessor do to evict? Firstly, it is important to seek legal advice and ensure that you have a well drafted lease agreement. Evicting unlawful occupiers with a well drafted lease agreement is hard enough, not to add further complications with a sloppy contract that is vague and ambiguous. Needless to say a verbal lease agreement is never a good idea.

Secondly, and unfortunately, it is important to be patient when dealing with these matters. Sometimes it is may even be beneficial to help the unlawful occupiers relocate, even though this might put you out of pocket in the short term.

Thirdly, landlords should consider requiring a deposit of at least two months rental to cover monies due by defaulting tenants.

Lastly, pre-screening of lease applicants is vitally important. A little upfront due diligence can go a far way in helping identify bad tenants and avoiding time-consuming eviction processes at a later stage.