Evictions are not simple. Each case is different and there are multiple types of unlawful occupiers.
Obviously, you want an expert to start solving your problem as soon as possible. But where do you start?
EvictionDoc gives you the tools to provide us with everything we need to make your eviction unique, cost effective and quick to avoid loss of property value and to get you your property back!
THE BENEFITS OF EVICTIONDOC
Complete our simple, free, online checklist and we will be able to determine whether you need to start with a formal letter of demand, cancel the lease or notify the tenant or occupier of your intentions in legal terms, by using the information you provide in your completed checklist.
If your matter is ready for legal action, we will immediately advise you in which court to launch the eviction application, your costs, strategy and provide additional guidance.
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Which law applies to residential evictions?
The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 or (PIE).
The aim of PIE is to prescribe procedures for legal evictions and to protect both occupiers and property owners.
Are all residential eviction procedures the same?
No, PIE sets out two sets of procedures for evictions depending on whether a private landowner or an organ of state owns the land.
What constitutes an unlawful occupier?
A person who occupies land without any legal right to do so – Someone who does not have the consent of the land owner or person in charge of the property.
The most common examples of this are: Occupants who used to lease properties, but whose leases have since terminated, and occupants who never had the right to occupy a property in the first place. Of course, a property owner who did not pay his bond and loses his house to the bank (and simply remains on without permission) as well as a squatter (no right to be there at all) are other examples.
What defines "land used for residential purposes"?
Land where people live on a permanent basis. It does not include the following:
- Business premises. (unless used as a home).
- Commercial, industrial, retail or agricultural property.
- Holiday homes
- Persons who occupy farmland in terms of the Extension of Security of Tenure Act.
What are "just and equitable" considerations of the court?
Once a court is satisfied that occupation of premises is unlawful and that the application for an eviction has been brought properly, it will determine what length of time must be given to the occupants to vacate the premises. When doing this, the court is likely to consider the occupants’ circumstances and if there are any vulnerable persons, such as persons who are disabled, young or elderly, occupying the premises. It may also be required to consider whether the occupants could find alternative accommodation.
But I cancelled the lease 6 months ago...
From date of a lease cancellation, the clock starts to count down a six-month period that will make a significant difference to the eviction process.
What if the occupier has lived on my land for more than 6 months?
Landlords who allow six months to pass before they initiate eviction proceedings have a more difficult time, because the court may investigate whether the occupiers can find alternative accommodation.
When is it time to evict?
When demand for payment has not been made, the lease has been cancelled and the tenant won’t vacate or when any occupant who has no right to be in the property has refused to leave on receipt of a demand to do so.
What is the role of the agent?
The role of the agent is to ensure that the pre-eviction process is handled correctly, as well as ensuring that the eviction process is carried out smoothly.
The agent must:
- Provide the landlord’s attorneys with all the necessary documentation and information.
- Ensure that the identities of the persons occupying the property are known.
If an eviction is required, or foreseen, the agent must act immediately in ensuring that the tenant is furnished with the required notices, such as letters of demand and notices of cancellation.
For more about the duties and obligations of agents you may have to contact us directly or join one of our webinars.
What is an unopposed eviction application?
An unopposed application means the occupier does not seek to oppose his eviction. This can follow two trajectories:
- The first is when the occupier does not appear in court. If this is the case the court will grant an order that an eviction be carried out on a date it deems just and equitable.
- The second form is when the occupier does appear in court but agrees with the attorney as to a date he will vacate as well as the date the sheriff may evict.
Naturally, this is dependent on both parties agreeing that the time the occupier asks for is reasonable. If not, the decision reverts to the court.
What is an opposed eviction application?
This is when the occupier does seek to oppose his eviction and comes to court by him/herself or with an attorney and states there is some reason the application should not be granted.
In this scenario, the matter is postponed to another date and the tenant occupier has to file an affidavit stating why the order should not be granted.
This will necessitate actual argument in court, in which both parties or their representatives put their respective cases before the court, after which the court will make a judgment as to whether the eviction order is granted or not.
How do I avoid performing an unlawful eviction?
Simple, don’t do anything illegal.
This includes turning off the water and electricity, changing the locks, intimidation tactics and removing your tenant’s furniture and belongings.
How do I minimize the risk of a bad tenant?
Tenant screening, compliant leases, acting quickly if there are defaults, properly drafted letters of demand and cancellation and an attorney on board to assist with evictions or legal actions as and when they arise.