Evicting an Unlawful Occupier Or Tenant: Why Patience Is Required

By 17th May 2018Real Estate

The lease agreement between the landlord and the tenant has expired or it is the second month in a row that the occupiers of your property have failed to pay rent timeously, or at all. Can you quickly evict the tenant and replace him/her with a new one? What does our law say? How long will the eviction process take and could you, as the lawful owner of the property, take the law into your own hands and create an environment where your tenant will find remaining at the property unbearable and elect to leave on his/her own accord?

The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (“PIE”), and the Extension of Security of Tenure Act 62 of 1997 (“ESTA”) predominately govern evictions in South Africa. PIE applies to all land throughout the Republic (i.e) residential evictions, which is the most common form of eviction, except in cases where ESTA applies. ESTA Applies to all rural and peri-urban land (i.e) farmland, other than land in a township. ESTA will only apply to land in townships, if such land has been designated for agricultural purposes in terms of any law. It must be noted however, that just because your tenant resides on farmland or in an area designated for agricultural purposes, it does not automatically mean that ESTA will apply. This is where it may get a little bit confusing. ESTA states further that if an occupier generates an income of more than R 5000.00 permonth, then PIE will automatically apply, regardless if the land is defined in terms of ESTA and specifically excluded by PIE.

In our law the current procedure to evict an unlawful occupier from a property is rather slow. Our courts are cautious about arbitrarily evicting occupiers without first determining whether the occupier is in fact an unlawful occupier of the property and if so, whether he/she has the means and resources to take up residence elsewhere. Some courts even place this burden on the owner of the property to show that the occupiers do in fact have the capabilities of residing elsewhere. This may often lead to the assumption that our law favours the unlawful occupier over the lawful owner of the property. This of course is not the case, you must remember that an eviction application essentially requires a Court to make an Order which will deprive the occupier, even if he/she is residing at the property unlawfully, of a basic constitutional right to housing, therefore the Court must ensure that it takes its time to consider all the relevant factors in the matter, especially if such an order will render the occupiers homeless.

According to our law, no person can be arbitrarily evicted from any property without a court order that enforces such an eviction. The golden rule is that the person in occupation of the property is considered a bona fideand lawful occupier until the Court orders otherwise. This may be frustrating for the owner of the property because acquiring such an order can sometimes be time consuming, it can often take upwards of three – nine months to obtain an order for the occupiers eviction. This coupled with the fact that the Court will not make an Order for the immediate eviction of the occupier, as it will usually allow for a reasonable period to pass before the Order takes effect, this is of course done to allow the occupiers to find alternative accommodation. When considering that every month you as the owner are suffering loss of rental, potential damage to your property, as well as incurring, what may seem like unnecessary legal costs for the eviction, you may feel frustrated and want to try to evict the occupier yourself. Any actions committed by the owner which may even simply appear to evict an occupier is termed an constructive eviction and is illegal. Examples of constructive evictions are: where occupiers have had their electricity or water supply cut off, have had their privacy repeatedly invaded, are denied access to the property, have been threatened with violence and have been forcefully removed from the property (ect).

So what can a lessor do to advance a successful eviction application?

1. 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 lease agreement that is vague and ambiguous. Needless to say a verbal lease agreement is nevera good idea;

2. When your lessee falls in arrears, take immediate action against him/her by immediately sending a letter of demand for the outstanding rental to his/her chosen domiciliumand advising them of the possible remedies available to you as a result of their breach;

3. As soon as your lessee fails to comply with the letter of demand, immediately cancel the lease agreement in writing and request that he/she and all other occupiers vacate your property, within the period stipulated in your written lease agreement;

4. Unfortunately, it is important to be patient. Sometimes it is may be beneficial to help the unlawful occupiers to find alternative accommodation, even though it might put you out of pocket in the short term;

5. Lessors should seriously consider requiring a deposit of at least two months rental to cover monies due by defaulting tenants and to insist on pre-paid water and electricity meters being installed on the leased property. This may seem expensive in the short term, but it may end up saving you endless headaches in respect of unpaid municipal bills that are being run up by defaulting tenants, during the eviction process, and;

6. Lastly, the pre-screening process of your 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.