It is now the third month in a row the tenant has failed to pay his rental, and it doesn’t look like this tenant will ever be in a position to make up the outstanding rent. Can you quickly evict the tenant and replace him with a new one, or is it not quite that easy? What does our law say?
In our law the current procedure to evict a tenant is unfortunately not one that has been built for speed, and often appears to favour the unlawful occupier rather than the owner. The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (“PIE”), was enacted in 1998. PIE drastically changed the landscape in respect of evictions. PIE established a definite distinction between commercial property and residential property, with PIE only applying to residential properties.
According to PIE no person can be evicted from a residential property without a court order that enforces such eviction, and acquiring such court order can be time consuming as it can often take upwards of three months to obtain. When considering that every month you are suffering loss of rental, potential damage to property and you may have to incur legal costs, the costs related to this period can add up quite quickly.
Waiting for a litigious matter to be settled can be accepted as a ‘normal’ risk when renting out one’s property. However, sections 4(6) and 4(7) of PIE, add a further complication to the eviction process:
“4(6) If an unlawful occupier has occupied the land in question for less than six months at the time when the proceedings are initiated, a court may grant an order for eviction if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances, including the rights and needs of the elderly, children, disabled persons and households headed by women.
4(7) If an unlawful occupier has occupied the land in question for more than six months at the time when the proceedings are initiated, a court may grant an order for eviction if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances, including, except where the land is sold in a sale of execution pursuant to a mortgage, whether land has been made available or can reasonably be made available by a municipality or other organ of state or another land owner for the relocation of the unlawful occupier, and including the rights and needs of the elderly, children, disabled persons and households headed by women.”
This essentially affords the courts a discretion to grant an eviction order or not. The relevant circumstances as given in these sections are the rights and needs of the elderly, children, disabled persons and households headed by women. This means that even though you are the lawful owner of the property you can still ‘lose’ the use and enjoyment of your property if the court finds that these or other similar circumstances are present.
Although PIE is intended in part to help protect these vulnerable and easily exploited groups, it does in effect mean that unlawful occupiers could stay in your property for an indefinite period of time in accordance with what the courts deem as being just and equitable under the circumstances.
PIE does make provision for urgent applications which can dramatically shorten the time to evict an unlawful occupier. In this regard section 5 of PIE determines as follows:
“5(1) Notwithstanding the provisions of section 4, the owner or person in charge of land may institute urgent proceedings for the eviction of an unlawful occupier of that land pending the outcome of proceedings for a final order, and the court may grant such an order if it is satisfied that-
(a) there is a real and imminent danger of substantial injury or damage to any person or property if the unlawful occupier is not forthwith evicted from the land;
(b) the likely hardship to the owner or any other affected person if an order for eviction is not granted, exceeds the likely hardship to the unlawful occupier against whom the order is sought, if an order for eviction is granted; and
(c) there is no other effective remedy available.”
Although urgent relief can be obtained, this places a heavy burden of proof on the owner, and even more so when the vulnerable groups are involved whose hardship in the event of an eviction order being granted may outweigh that of the owner.
So what can a lessor do to evict? Firstly, 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 sloppy contract that is vague and ambiguous. Needless to say a verbal lease agreement is never a good idea.
Secondly, and unfortunately, it is important to be patient when dealing with these matters. Sometimes it is may even be beneficial to help the unlawful occupiers relocate, even though this might put you out of pocket in the short term.
Thirdly, landlords should consider requiring a deposit of at least two months rental to cover monies due by defaulting tenants.
Lastly, pre-screening of 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.