Words: Anne Schauffer
When the economy is tight it can affect landlords and tenants alike. How do you evict an errant tenant? In a perfect world, landlords and tenants should have a mutually beneficial relationship. Each has a clear responsibility towards the other, and when that balance is maintained, everything usually runs smoothly. But what if the balance tips?
What is an unlawful occupier?
Stavros Anthias, Smith, Tabata, Buchanan, Boyes (STBB) Attorneys, explains, “An unlawful occupier is a tenant who has breached a lease agreement. He can do this in a number of ways, e.g. by failing to pay the rental on the due date, failing to vacate the premises after the lease agreement has expired, by causing damage to the property (whether intentionally, or not) or if they are a nuisance to the neighbours.”
Prevention of Illegal Eviction Act
Historically, poor tenants had little power against landlords, so the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) was enacted to provide tenants with some form of security and protection against unprincipled property owners.
Anthias says, “The act ensures that ‘no one may be deprived of property except in terms of the law of general application, and no law may permit arbitrary deprivation of property except in terms of the law of general application, and no law may permit arbitrary deprivation of property; and 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’.”
He adds, “Special mention is made of the rights of the elderly, children, disabled persons and households headed by women, so that these vulnerable groups are not further disadvantaged by undue threats to their security of occupation.
“Informed consent is a guiding principle of the Constitution. Another important element of the PIE enquiry, made by our courts, is whether or not the eviction would be just and equitable in the circumstances of each case.”
Furthermore, he says, “In terms of the PIE, where the premises have been occupied by tenants for more than six months, the court is further obliged to consider the aspect of alternative accommodation and its availability. Where an eviction order will leave the occupants homeless, municipalities are to be joined in the proceedings and are obliged to provide a report dealing with the steps taken to secure alternative, emergency accommodation, and the impact a potential eviction will have on the occupants.
The eviction process
“Before undertaking a formal eviction process, one needs to place the tenant in breach,” says Anthias, “by delivering (by hand, post or, if a modern lease, by email) a formal letter, demanding rectification of the breach within a specified number of days. This will be in terms of the lease agreement. Failure to rectify the breach would then allow the landlord to cancel the lease agreement. Many tenants take a ‘lawyer’s letter’ more seriously than one from the landlord alone.
“If the lease agreement is for a fixed-term not exceeding 24 months, a cancellation would be governed by the Consumer Protection Act (CPA). It will then be mandatory to give the tenant at least 20 business days’ notice to rectify the breach, before the agreement can be cancelled. If the lease agreement has run its course, and the tenant remains in occupation with the express or tacit consent of the landlord, and continues to pay rent, the parties are deemed to have entered into a periodic lease on the same terms and conditions as the original lease agreement entered into. This is in accordance with the Rental Housing Act. In such a case, the landlord would need to give the tenant one calendar month’s written notice of termination of this periodic lease,” he says.
“If the unlawful occupier fails to vacate the leased premises despite demand, the landlord will then need to launch eviction proceedings. An attorney will need to be consulted to draft the necessary eviction papers. One may then proceed to issue a summons against the tenant, which would include an automatic rent interdict.
Two stages to the PIE application
First, the application needs to be issued at court, and a date set down for the hearing. Second, fourteen days before the hearing of the proceedings, the court must serve written and effective notice of the proceedings on the unlawful occupier and the municipality having jurisdiction in respect of the matter.
Speed of success?
The success of an eviction application depends on compliance with the necessary procedure. If the process is followed correctly, possession of the leased premises will be restored within a few months. If the eviction is opposed, it may take a little longer, but the order should be granted in favour of the landlord if the PIE has been complied with.