Category

PIE

A brazen case of a hijacked building

By | hijacking, PIE, Student evictions

Students protected as illegal “landlord” evicted

Eviction is never pleasant, regardless of just cause. It usually means someone losing their home, even if their occupation of that home is technically unlawful. People who erect shacks on land that is not their own can be forgiven…or at least understood…when they genuinely have nowhere else to go. But sometimes an eviction is not only justified but entirely deserved. A recent case that came before the Gauteng High Court reveals just how brazen a building hijacker can be. The case is astonishing for the sheer audacity of the respondent. Fortunately, the law prevailed. Furthermore, it protected a large number of innocent students who were offered tenancies under false pretences.

Caretaker turned landlord

A property-owning company owns a property in Tshwane. They are the applicant – the party bringing the case to court. The respondent, or defendant, is an individual who was formerly employed by the applicant as a caretaker of the property. He was permitted to occupy the property to carry out his duties, but his employment has now been terminated. With absolutely no mandate from the property owner, this former caretaker concluded an accreditation agreement with a third party so the property could be accredited as private student accommodation. When the applicant learned of this, they obtained an order stopping the respondent from leasing out units and from collecting rent or permitting people who are not in occupation of the property to enter the property and take up occupation. The respondent was specifically forbidden from acting on behalf of the applicant for any purpose. Nonetheless, the respondent continued to rent rooms to students. Occupant numbers rose from 17 to 50, and by early March 2024 there were approximately 200 students in residence!

Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE)

When PIE is mentioned, it is usually in the context of stopping an eviction. However, the Act also exists to stop unlawful occupation, and the applicant in this case believed (with good reason) that the respondent’s occupation of the property was unlawful. Furthermore, the respondent, acting as landlord, was collecting rental income to which he had no entitlement. The applicant went to court seeking an eviction order under PIE and an urgent interim eviction order under section 5(1) of the Act. Because eviction proceedings can take some time, the applicant was concerned to rectify a chaotic and potentially dangerous situation quickly. Section 5(1)  states:

(1) …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.

In the application for the urgent eviction order, the applicant argued that unless the respondent was evicted on an urgent basis the hijacking of the property would continue. Given that unlawful landlords rarely have the best interests of the property or the tenants in mind, and are not known for maintaining properties in good order, the likelihood of injury or damage to person or property was high. 

Fate of the students in the hijacked building

However, the tenants had occupied the building in good faith and were living there while pursuing their studies. There have been many stories in the press of hijacked buildings being cleared by relocation and eviction services such as the Red Ants, who may restore the building to the rightful owner but also make tenants homeless in the process. Fortunately, in this case the applicant informed the students of the pending dispute and confirmed that the application to court would not affect their occupation of the property. The university has been furnished with a copy of the court order and the applicant intends to seek accreditation with the university once the fraudulent accreditation granted to the first respondent has been cancelled. At that point leases will be normalised. Students were advised not to make any further payments to the respondent and to alert the applicant to any attempt to extort money from them by threats. In yet further confirmation of his brashness, the respondent physically prevented delivery of these letters to the property.

A happy ending

The court found that the requirements in section 5(1) of the Act were met. There is a real and imminent danger of damage to the property and harm to the bona fide students who are at the property to pursue their studies, and the hardship to the applicant and the occupiers far exceeds the potential harm to the respondent, who has no right to occupation. The respondent has invaded the applicant’s property and the applicant is in danger of losing the use of his own property to the detriment of their lawful business and to the detriment of the university students. The property is also undergoing maintenance that is incomplete and construction work may pose a danger to students. The right to occupation initially granted to the respondent was limited and linked to his employment as a caretaker. He did not have permission to rent out rooms or to use the property for business purposes on his own behalf of on behalf of anybody else. The applicant has a right to the use and enjoyment of the building. The property company is entitled to protect its property from damage and to regularise its relationship with the university, using the property to earn income by providing legitimate accommodation to genuine students.

The respondent was ordered to vacate the property within 48 hours of service of the eviction  order.

For further information

Landlords sometimes need legal help with troublesome tenants. Tenants may also have mitigating circumstances that make an eviction case complex. But this particular case was cut and dried. The respondent blatantly abused his initial right of occupancy as caretaker and disregarded the law in offering accommodation to students with accreditation gained under false pretences. The urgent eviction order was granted without dispute. If you have issues with property hijacking, we can help. Simon Dippenaar & Associates, Inc. is a law firm of specialist eviction lawyers in Cape Town, Johannesburg and Durban. Contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za

Further reading:

Serving an eviction notice

Serving an eviction notice

By | Eviction notice, Evictions, PIE

How to serve an eviction notice legally and properly

Are you a landlord? If so, we hope your tenancies are fruitful and trouble free. We hope you have amicable relationships with your tenants. Unfortunately, we know that isn’t always the case. Sometimes there is a breach of the lease agreement that, for whatever reason, is not remedied within the designated time frame and it is necessary to start eviction proceedings. When this happens, you need to understand and follow the legal requirements and procedures involved in serving eviction notices to tenants. If you take the right steps, your eviction notice will be legally valid. This is a guide to serving an eviction notice correctly.

Legal grounds for eviction

Before serving an eviction notice, you must have valid legal grounds for an eviction. The court will only grant an eviction order if:

  • You are the owner of the land/property
  • The person occupying your property is an unlawful occupier 
  • You have reasonable grounds to evict the occupier

Before resorting to eviction, you must have given your tenant notice of the breach of the lease agreement and sufficient time (as stipulated by law) to remedy the breach. This article is about the eviction order itself; for more information on the full process see Legal reasons for eviction and How to evict a tenant.

The court will take into account whether there is alternative accommodation available. The Prevention Of Illegal Eviction And Unlawful Occupation Of Land Act (PIE) defines an “illegal occupier” as a person who occupies land without the express or tacit consent of the owner or person in charge of the land, or without any right in law to occupy such land. 

PIE also recognises the concept of “unlawful occupiers”, which refers to occupants who occupy land or property with the consent of the owner or person in charge, but their occupation is in contravention of a law or agreement.

Eviction notice

An eviction notice is a formal written document you as the landlord provide to the tenant, informing them they must vacate the property. It is legal notice that you are starting eviction proceedings and should include, among others, the date when the notice is issued, the tenant’s name and contact details, the address of the property, and the grounds for the eviction, such as non-payment of rent, violation of lease terms, illegal activities, or expiration of lease. Avoid language that may be interpreted as threatening or discriminatory. Be concise and specific in your notice. A qualified eviction specialist can ensure your eviction notice is legally sound.

Serve the eviction notice personally

In South Africa, eviction notices must be served personally on the tenant or other adult residing on the property. When serving the notice: 

  • Choose an appropriate time to serve the notice (when the occupant is likely to be available)
  • Make sure the tenant acknowledges receipt of the notice (by signing and dating a copy, or having a witness present at the service)
  • Keep a copy of the notice and the proof of service for your records (it will be used for the eviction application)

Alternative methods of serving the notice

If you are unable to serve the eviction notice personally, you may use alternative methods, such as:

  • Registered mail
  • WhatsApp
  • Email 
  • Attaching the notice to the property’s main entrance

The lease agreement should indicate how legal notices need to be served. However, it is always advisable to have proof of receipt (signed acknowledgement, two ticks on WhatsApp, read receipt on email, etc.) to avoid any potential disputes. 

Allow adequate time for compliance

After serving the eviction notice, the tenant is entitled to a reasonable period to either remedy the situation or vacate the premises. The notice should specify the period allowed and will vary depending on the grounds for the eviction. It’s advisable to seek legal assistance or consult a qualified eviction specialist to determine the appropriate time frame.

Institute legal proceedings

If the tenant fails to comply with the eviction notice within the specified time, you may institute legal proceedings, i.e., apply for an eviction order. Consult with an attorney or eviction specialist to initiate the eviction process correctly. They will guide you through the necessary steps, including filing an eviction application in court, and will represent you during the legal proceedings.

You must serve the eviction notice correctly for the eviction order to be granted by the court. By following the steps outlined above, you can ensure your eviction notice is legally valid, giving you a solid foundation for instituting legal proceedings if necessary. 

For further information

Simon Dippenaar & Associates, Inc. is a law firm of specialist eviction lawyers in Cape Town, Johannesburg and Durban. We help landlords and tenants maintain healthy working relationships but, when it is necessary, we can assist with eviction, ensuring it is effected legally and ethically. Contact one of our eviction attorneys on 086 099 5146 or simon@sdlaw.co.za if you need help with an eviction or a breach of a lease agreement. 

Further reading:

Rights responsibilities in rental housing

Tenants’ rights and landlords’ responsibilities

By | Eviction notice, Evictions, Lease Agreement, PIE, Rental Housing Act

What South African law says about eviction

The relationship between property owner and occupier should be a happy one. After all, it offers a reciprocal and mutual benefit. One earns a passive income from an owned asset, and the other enjoys a home to live in, without the weight of responsibility that come with property ownership. Unfortunately, the relationship is not always friendly. Friction can emerge as a result of unpleasant behaviour by either party. Landlords can be unresponsive or unreasonable. Tenants can be disrespectful or negligent. South African law contains multiple pieces of legislation governing rental housing, and both landlords and tenants are accorded rights that protect them. They are also assigned responsibilities they must uphold. But the balance tends to lean towards tenants’ rights and landlords’ responsibilities. In this article we examine them both.

Understanding tenant’s rights

The South African Constitution gives people certain inalienable rights. How do they apply to tenants?

Right to fair treatment in law

A landlord cannot evict a tenant without going through the correct legal procedures. Unfortunately, some landlords take it upon themselves to involve municipal law enforcement to evict tenants. The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act No 19 of 1998 (PIE) is a key piece of legislation in South Africa that regulates the process of eviction. It was enacted to protect both property owners and tenants, ensuring that evictions are carried out in a fair and lawful manner.

The courts take eviction law very seriously. Failure to follow the correct process could result in a heavy fine for the landlord, as well as damages payable to the tenant. In the worst case scenario, the landlord could end up in jail, facing serious criminal charges.

Right to adequate housing 

The Constitution recognises the right to adequate housing as a basic human right. No one’s property may be taken away from them and no one may be evicted from their home without a court order. This means a landlord must apply to court before evicting a tenant from their property.

The court must be satisfied that there is alternative accommodation available to the tenant before ordering the eviction. This can be state housing, as the state has a duty to provide housing to all its citizens. If the tenant has occupied the property for over six months, PIE does not allow the tenant to be evicted without having first secured alternative accommodation.

Right to legal representation

The law gives a tenant the right to defend against an illegal eviction if a landlord forces them to leave the premises without appropriate notice. Ownership does not give a landlord the right to evict a tenant without following the correct procedure.

Tenants have the right to legal representation during the eviction process. If a tenant cannot afford a lawyer, they can seek assistance from Legal Aid South Africa or a pro bono attorney. Further information regarding Legal Aid is available online or from the Registrar of the High Court.

Understanding landlord responsibilities

Landlords have a set of responsibilities towards their tenants. Legislation is motivated in part by past abuses and rental housing law ensures tenants cannot be exploited or unfairly treated.

General obligations

The landlord has the responsibility to:

  • Deliver the property to the tenant for their use and enjoyment. The landlord must provide everything necessary for the tenant to use and enjoy the property, for example, keys, remotes, etc. 
  • Maintain the property in good order and condition for the duration of the lease agreement. Correspondingly, the tenant should report any defects in the property to the landlord.
  • Ensure the tenant’s undisturbed use and enjoyment of the property, i.e., the tenant’s privacy.

Following legal procedures

The PIE Act clearly defines the procedure the landlord must follow to evict a tenant. A property owner must not take the law into their own hands, for example by cutting the electricity or water supply to the property or intimidating the unlawful occupier into vacating the property. A landlord can only consider eviction in the event of a breach of the lease agreement which the tenant has failed to rectify. If the lease is coming to its natural end and the landlord does not wish to renew it, they simply give the tenant notice to quit per the terms of the lease agreement. This is not eviction. However, if the tenant breaches the agreement, the steps in the eviction procedure are:

1. Notify the tenant of the breach.

  • The landlord must issue a warning to the tenant in writing, giving them a specified amount of time to remedy the breach. This time frame is determined by the terms of the lease. Unless otherwise specified, it is 20 working days, in accordance with the Consumer Protection Act (CPA). The CPA is designed to protect consumers in various transactions, including rental agreements. It sets out specific requirements for notice periods and other aspects of the landlord–tenant relationship. If there is no written lease, the landlord must give a full calendar month’s notice. If the tenant rectifies the breach, the matter is finished.
  • If the breach is not remedied within the designated time, the landlord notifies the occupier in writing that the lease is to be cancelled and gives the occupier reasonable time to vacate the property.
  • The notice period required to cancel the lease, like the time allowed to remedy the breach, is dictated by the lease. If no time frame is stipulated, or in the case of a verbal lease, a minimum of one calendar month’s notice is required (end of the current month to the end of the following month).

2. Apply for a court order.

  • If the occupier fails or refuses to vacate the property, despite being given adequate notice, the landlord may approach the court to start the eviction procedure.
  • The court provides the landlord with a date and time for the eviction hearing.

3. Serve notice on the tenant 

  • Written notice of the eviction hearing must be personally served on the unlawful occupier of the property, as well as on the local municipality. 
  • This notice must be served by the sheriff at least 14 business days before the eviction hearing in court. 
  • The notice must indicate the date and time of the eviction hearing, the circumstances surrounding the eviction, and the unlawful occupier’s right defend themselves.

4. The hearing. 

  • At the eviction hearing the court will hear the matter and make a decision whether or not to grant the eviction order. The occupier may defend the eviction. The court will consider factors such as children, elderly or disabled tenants, and woman-headed households, and the availability of suitable alternative accommodation when granting the eviction order. In certain circumstances an order may be granted but “stayed” – delayed – to give the occupier more time to find another home.

Respecting tenant’s rights

Landlords must respect the rights of tenants during the eviction process. Harassment or intimidation of tenants is not permitted.

The landlord is not allowed to enter the tenant’s premises or remove doors to speed up the eviction process. The provisions of the Rental Housing Act are clear on the rights of tenants. The tenant’s rights include the right not to have:

  • Their person or home searched
  • Their property searched
  • Their possessions seized, except by court order

Balancing rights and responsibilities

Evictions are complex processes that require a careful balance between the rights of tenants and the responsibilities of landlords. It is also important to be mindful of ethical considerations, as South Africa has an acute housing shortage at present and a fragile economy. It is always better to try to resolve disputes through negotiation and, if necessary, mediation. Seeking an eviction order through the courts should be the last resort. 

For further information

Simon Dippenaar & Associates, Inc. is a law firm of specialist eviction lawyers in Cape Town, Johannesburg and Durban. We help landlords and tenants maintain healthy working relationships. Contact one of our eviction attorneys on 086 099 5146 or simon@sdlaw.co.za if you need help with tenants’ rights or landlords’ responsibilities. 

Further reading: