Landlords and managing agents enter into lease agreements with tenants hoping for a smooth and mutually beneficial relationship. Unfortunately, things don’t always go according to plan. This note briefly explains the ins and outs involved in evicting an unlawful occupier from residential premises.
What do you mean by unlawful occupier?
We will be looking at two instances whereby a tenant can become an unlawful occupier. They are:
Breach of the lease agreement entered into:
In most cases this typically involves a failure to pay the monthly rental, although it can be a breach of any of the obligations undertaken by the tenant in terms of the lease agreement. If this is the case, the landlord or managing agent needs to place the tenant in breach by delivering a formal letter, demanding rectification of the breach within a specified number of days. Failure to rectify the breach would then allow the landlord or managing agent to cancel the lease agreement. (If the lease agreement is for a fixed-term not exceeding 24 months, cancellation thereof would be governed by the Consumer Protection Act (the “CPA”) and the landlord or managing agent would then need to be wary of the mandatory 20 business day period after giving notice of breach, before cancelling the lease agreement; in accordance with section 14 of the CPA.) Once the lease agreement has been cancelled, the tenant becomes an unlawful occupier.
By effluxion of time:
If the lease agreement has run its course, and the tenant remains in occupation with the express or tacit consent of the landlord or managing agent, the parties are deemed to have entered into a periodic lease on the same terms as the original lease agreement entered into. This is in accordance with section 5 of the Rental Housing Act. In this case, the landlord would need to give the tenant one month’s written notice of termination of this periodic lease. Failure to vacate after this termination would render the tenant an unlawful occupier.
The unlawful occupier won’t leave, now what?
If the unlawful occupier fails to vacate the leased premises despite demand, the landlord or managing agent would need to launch eviction proceedings in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (“PIE”).
The landlord or managing agent would need to approach an attorney to draft the necessary application in terms of section 4(1) of PIE. Once drafted, the application would need to be issued at court and set down. The process of issuing and obtaining directions for service varies from court to court as well as between lower and higher courts. Therefore one should allow enough time for the requisite service by the Sheriff, as well as to deal with the second part of the PIE application; namely that of section 4(2).
Section 4(2) of PIE states that at least 14 days before the hearing of the proceedings contemplated in subsection (1), the court must serve written and effective notice of the proceedings on the unlawful occupier and the municipality having jurisdiction. This entails the court ordering that the 4(1) application be served personally on the unlawful occupier, alerting the him or her to the proceedings to be held and making him or her aware of their rights in that regard. This order would then need to be served on the unlawful occupier by the Sheriff.
How will the Court react?
An eviction application will be successful where the landlord or managing agent has ensured proper compliance with the procedure and requirements as prescribed by PIE. One of the important elements of the PIE enquiry made by our Courts is whether or not the eviction would be just and equitable in the circumstances. In this regard, Courts are obliged to consider all the relevant circumstances which include, inter alia, the needs of the elderly, the disabled, and households headed by women.
In addition, in terms of section 4(7) of 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 to the proceedings and are obligated to provide a report dealing with the steps taken to secure alternative emergency accommodation and the impact of a potential eviction on the occupants.
As Harms JA stated in Ndlovu v Ngcobo: Bekker and another v Jika:
“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 is to 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.”
Therefore the success of an eviction application hinges on compliance with procedure so that all factors may be considered. If the process is followed properly, possession of the leased premises will be restored within a few months. If the eviction is opposed, it may take a while longer, but the order should be granted if PIE is complied with.