Property Advice

Property Advice

BY CILNA STEYN

Managing Director, SSLR Attorneys Incorporated

Q “I have tenant who has not paid me rent for two months already and refuses to leave the premises. He says that he refuses to leave and that the PIE Act is in his favour. Unfortunately we do not have a proper lease agreement in place and I accepted cash Please advise me what are my rights and what I can do.”

A 
The Prevention of Illegal Evictions Act (PIE) is often seen as legislation protecting squatters from eviction, as is clearly the case with your tenant. This is however not the case, the purpose of this act is to prevent illegal evictions. This is an extension of sec 26 of the Constitution, stating that no person may be evited without a court order. The procedure that must be followed in order to obtain a legal eviction order is set out in PIE.

Even though a landowner must obtain a court order to evict an illegal occupant, it does not mean that the law is in favour of illegal occupants. To avoid a complete state of anarchy we, as citizens, cannot simply take the law into our own hands, a court must order enforcement of our rights. To place this in context, let’s consider a divorce, nobody would ever think that the law does not allow divorces simply because you are required to obtain a court order to get divorced. This is the same with evictions, you are required to follow the procedure as set out in PIE to be successful with an eviction order, but when you do, the court must grant the order to have the illegal occupant evicted. Should the occupant fail to vacate in terms of the court order, the sheriff of the court will attend to physically remove the occupants from the premises.

PIE only applies to residential properties. There are four equity groups in terms of PIE; being elderly people, children, disabled people and woman-headed households. If there are occupants from these groups in the premises, it does not mean that the court won’t grant the eviction order. It simply means we must ensure that the court is aware of this, the court will then consider this when determining a date that would be just and equitable for the occupants to vacate.

The first step in an eviction is to prove that the owner is in fact the owner of the property, a deed search report is sufficient prove. Secondly the owner must show that the occupant is in illegal occupation. Either the occupant is simply there without any right to the property, or the occupant had a right, for instance a tenant in the case of a rental, but the right they had to occupy has been cancelled or terminated.

The fact that you do not have a written lease agreement does not change the position much. It is advisable to have a written lease agreement, as this will make proving the terms of the agreement much easier. Rent paid in cash places a burden on the landlord, that many landlords are unaware of; the Rental Housing Act requires the landlord to provide written receipts for all payments made by the tenant. Non-compliance does however not exclude the landlord from placing the tenant on terms meaning that the tenant must be awarded a time period to remedy his breach, by paying the full outstanding amount. In the case of a verbal agreement it can be assumed that the agreement is on a month-to-month basis, as such excluding the provisions of sec 14 of the Consumer Protection Act, and the landlord can give the tenant written notice to remedy the breach within a period of seven calendar days. It is important to note here that this is a notice awarding the tenant time to remedy his breach, it is not a cancellation notice yet. Cancellation can only be done after this time period, and only if the tenant has failed to remedy the breach in full.

Another option, when dealing with a verbal agreement, is to rather terminate the agreement, by giving the tenant one month’s written notice of termination, this is instead of the cancellation as described above. This termination will exclude all potential disputes regarding rental payments, as this is irrelevant because a month-to-month agreement can be terminated by giving a month’s written notice, without having to provide any reason for the termination.

With the tenant now in illegal occupation following cancellation or termination, eviction proceedings can commence. It is advisable to approach an eviction specialist attorney to attend to the application.

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