Lease agreement contract port elixabeth lawyer RESIDENTIAL PROPERTY

Evict a tenant lawfully in South Africa

It is possible to evict an unlawful occupier?

Although many people believe that the Prevention of Illegal Eviction and Unlawful Occupation of Land Act – or more deliciously known as the PIE Act – makes it virtually impossible for a private landlord to evict a tenant from a residential property, it is demonstrably untrue.

Landlords may secure an eviction order, but they will have to endure a long and expensive process. This is especially true if they do not bring an eviction application timeously or if they do not follow the proper legal procedures.

Section 26(3) of the constitution states that “no one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.” For this reason, a court will proceed cautiously before granting an eviction order.

Luckily for landlords, case law shows that the courts do not hold that property owners have an obligation to provide accommodation free of charge. For example, in Ndlovu v Ngcobo and Bekker and Another v Jika, two appeals that were heard concurrently by the Supreme Court of Appeal in 2002, Judge Louis Harms stated: “The effect of PIE is not to expropriate the landowner, and PIE cannot be used to expropriate someone indirectly, and the landowner retains the protection of section 25 of the Bill of Rights. What PIE does do is delay or suspend the exercise of the landowner’s full proprietary rights until a determination has been made whether it is just and equitable to evict the unlawful occupier and under what conditions.”

It is important that landlords use an attorney who is well versed in the legalities of evictions, because failing to adhere to the various local procedures will delay the process, incurring more costs and loss in rent.

The PIE Act

The PIE Act only governs evictions from residential property and excludes property leased for commercial, industrial or agricultural purposes, or holiday accommodation. The zoning of the land is not relevant in determining whether the Act applies to an eviction but is determined by its use as a dwelling.

The registered owner of a residential property, or person in control of such premises, has the right to initiate proceedings under the PIE Act. Examples of a “person in control” are:

* A rental agent who acts on the lawful instructions of the owner;

* A tenant who wants to evict a sub-tenant; or

* An executor of an estate that includes a residential property.

To bring an application successfully, the applicant must show that he or she is the owner or the person in control of the property, and that the respondent is an unlawful occupier.

The Act defines an unlawful occupier as “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 this Act, would be protected by the provisions of the Interim Protection of Informal Land Rights Act”.

An unlawful occupier could be:

* A defaulting tenant whose lease has been cancelled;

* A defaulting mortgagor whose bond has been cancelled and whose property has been sold in execution;

* A squatter; or

* Any other person who does not have the express consent of the owner or person in lawful control of the premises to occupy the premises.

Once a landlord cancels a lease agreement, a tenant is no longer a tenant, but an unlawful occupier.

Six-month count down

It is important to note that the clock starts to count down a six-month period from the day on which you cancel a lease that will make a significant difference to the eviction process.

In terms of section 4(6) of the PIE Act, if an unlawful occupier has occupied the land in question for less than six months 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.

However, in terms of section 4(7), “if an unlawful occupier has occupied the property in question for more than six months 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 property is sold in execution, whether property has been made available or can reasonably be made available by a municipality or other organ of state or another landowner for the relocation of the unlawful occupier, and including the rights and needs of the elderly, children, disabled persons and households headed by women”.

Once six months pass before they initiate proceedings, landlords have to clear a much higher hurdle to obtain an order. This is because the court must first investigate whether the municipality should provide the occupiers with alternative accommodation.

A court might not grant an eviction order on “just and equitable grounds”, but this is extremely rare. The circumstances of each case will determine exactly what “just and equitable grounds” are.

In most cases, the main consideration is to ensure that the occupier is given sufficent time to vacate the property and find other lodgings before the sheriff can enforce an eviction order. The inevitable is really only delayed.

Section 4(7) does not mean that you are obliged to find alternative accommodation for an unlawful occupier. In the context of a residential lease, the court would enquire into whether the occupier could find other rental property in the area. The extent to which this consideration influences the court’s decision depends on the circumstances of each case. For example, the unlawful occupier of a luxuryholiday home would not be entitled to the same consideration as the unlawful occupier of a backyard shack who has three minor children.

The courts usually grant an eviction order in the case of normal residential leases. Difficulties do arise when a property has been sold by order of a court, especially for long-term occupants.

Landlords and rental agents commonly make the mistake of creating an implied lease agreement by accepting rent from an occupier refusing to leave. Another mistake is to send invoices or letters of demand after cancelling a lease. If you accept or demand rent, you are implying that a lease is in place, which undermines the contention that the premises are occupied unlawfully.

If an occupier decides to pay up after the lease has been cancelled, he or she must be informed in writing that the payment is not accepted as rent, but as damages for holding over (remaining in the property after cancellation). The letter should also inform the occupant that a new lease has not been entered into and that the landlord has not waived his or her right to evict. (The original lease should include a “holding over” clause, which states that, if you cancel the lease and the tenant disputes the right to cancel and remains in occupation of the property, the tenant will, pending the outcome of the dispute, continue to pay you an amount equivalent to the monthly rent.)

Initiating proceedings

In terms of the Consumer Protection Act (CPA), a landlord must give the tenant 20 business days’ notice that the fixed term contract will be cancelled if they do not rectify all their material breaches in the contract.

Should they remain i nbreach after this period, a cancellation letter can be sent on day 21. The letter should state that the tenant isdeemed to be occupying the property unlawfully and that he or she must vacate the premises by a specific date.

The letter of cancellation is not an eviction notice (there is no such document in South African law) but it is an essential requirement before the landlord can proceed with the application to evict an unlawful occupier.

Once the occupier remains on the premises by the date in the letter of cancellation, an eviction application can be lodged. This includes seeking the court’s permission to serve a notice of motion on the occupier.

Section 4(5) of the Act states that this notice of motion must:

* State that proceedings are being instituted in terms of section 4(1) of the PIE Act for an order for to evict the occupier;

* Indicate on what date and at what time the court will hear the proceedings;

* Set out (in a supporting affidavit) the grounds for the proposed eviction;

* State that the unlawful occupier is entitled to appear before the court and defend the case; and

* State that the occupier has the right to apply for legal aid.

The attorney must obtain the permission of a magistrate or judge to serve the notice on the occupier. In terms of the Act, the notice of motion, as well as the main application to evict the occupier, must also be served on the municipality.

There must be at least 14 calendar days between the date on which the occupier receives the notice and the date on which the matter is set to be heard in court. Even one day shorter will result in the applicationhaving to be lodged all over again.

A summons for unpaid rental can be attached to the door of the premises by the sheriff, but a notice of eviction proceedings must be served on the occupier personally. If the sheriff is unable to serve the notice personally, your attorney will have ask the court for permission to serve the notice in some other way. Once a lease has been cancelled, occupiers know that a notice of motion is likely to be on the way and make themselves unavailable. This might necessitate going to court two or three times before the notice can be served.

Opposed/unopposed applications

An unopposed application can take two forms:

* Neither the occupier nor his or her attorney appears in court on the day of the hearing. In this case, the court will grant the eviction order and decide by what date the occupier must vacate the premises.

* The occupier and/or his or her attorney appears in court and agrees to vacate the premises by a certain date.

If the landlord and occupier cannot agree on the date, the court may decide it at the hearing, or it may postpone the matter so that you and the occupier can argue your cases at another hearing. If the occupier informs the court, before the date set down in the notice, that he or she intends to oppose the application, the hearing will be postponed to allow both parties to file papers.

If an occupier neglects to lodge an application to oppose the motion, and only opposes it on the day of the hearing, the occupier will have to explain this to the court and why the application should not be granted. If it is apparent that there are no grounds for opposition, it is likely that the court will allow the application to proceed and grant an eviction order.

If the occupier does not vacate the premises by the date agreed to or set by the court, the sheriff is authorised to eject the occupant and to remove his or her possessions, at the occupant’s expense.

Costs are usually awarded to the party that wins the case. If the lease states that costs will be awarded on the attorney-own client (the highest) scale, the landlord is entitled to ask for costs to be awarded on this basis, but the court is not obliged to agree to this.

An eviction application can be heard in either a magistrate’s court or the High Court. There is an automatic right to appeal a decision of a magistrate’s court, whereas permission is needed to appeal a decision of a High Court. This means that a High Court order may provide a landlord with greater certainty that the occupier will vacate the property.

If, when the matter comes to court, the court believes that you, the landlord, engaged in an unfair practice under the Rental Housing Act, the court will send both parties to a Rental Housing Tribunal (RHT) to obtain a ruling on that before it continues with the eviction application.

The landlord cannot initiate eviction proceedings if a tenant lodged a complaint with a RHT before the application was launched and the tribunal has yet to make a ruling, or unless at least three months have passed from the date on which the tenant lodged the complaint with the RHT.

Consider cutting your losses

If the occupier decides to oppose the application, it may be in the landlord’s interests to negotiate a settlement, in terms of which the occupier agrees to vacate the premises within a certain period. It may sound unfair, but if the occupier opposes the application, the occupier could continue living in the property, rent-free, for six months from the date on which the lease was cancelled. Further legal fees will also be incurred to secure the eviction order. In addition, if a magistrate’s court grants the eviction order, the occupier could appeal the decision in the High Court. If the High Court grants the order, the occupier might apply to the Supreme Court of Appeal.

If the occupier breaches the terms of the settlement agreement, your attorney will still have to apply for an eviction order. However, the occupier will not have grounds for opposing it, because, by signing the agreement, the tenant would have acknowledged that his or her occupation of the property was unlawful.

Even though an occupier will also incur legal fees to fight the application and lodge appeals, they might live in the property for as long as two years and only effectively pay half what he or she would have paid in rent.

It is therefore in the interest of the landlord to reach a settlement with the occupier and thereby put in a paying tenant in the property much sooner.

It might be a complex and protracted process to evict an unlawful occupier, but we can assist you every step of the way.Give us at Strydom Attorneys a call for assistance in your eviction matter.  We specialize in cases in Port Elizabeth and surrounds.