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PIE

How to oppose eviction South Africa

Opposed eviction

By | Evictions, Lease Agreement, PIE, Tenants

What is the difference between an unopposed and opposed eviction?

 

We’ve written a lot about the eviction process. In describing the procedure, we say, “If there is a valid defence, then a trial date is set. If there is no valid defence, a ‘warrant of eviction’ is issued to the sheriff giving authorisation for the sheriff to remove the tenant’s possessions from the premises.” If the tenant offers a valid defence, the matter is considered an “opposed eviction”. If there is no defence, the eviction is “unopposed” and proceeds straight to the court order and the removal of the tenant’s belongings from the property. But what constitutes a valid defence and why might a tenant oppose an eviction?

The right to housing vs. the right to ownership

In South Africa the right to housing is a constitutional right of every individual as per section 26 of the Constitution. But sometimes this right of the tenant comes into conflict with the landlord’s constitutional right to ownership, which is entrenched in section 25.

With a residential property lease, once there is a breach of contract, the landlord is entitled to give notice, cancel the lease and evict the defaulting tenant. If the landlord has given written notice of the intention to cancel the lease and the notice period has expired (minimum one calendar month) with no payment from the tenant, eviction proceedings can begin. If the lease is cancelled for any other breach, that must also be rectified within the notice period, but non-payment of rent is the most common.

Due process to oppose an eviction

The landlord then applies to court in terms of the provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 1998 (PIE). The landlord and the tenant have several rights and responsibilities when it comes to eviction applications and the process can be technical. The application is made up of a notice (S4(1) notice) supported by an affidavit. 

Once a notice of cancellation/eviction has been sent and the notice period has expired, the court process may begin, through the service of an eviction application by the Sheriff. The respondent will then have 10 days to oppose by filing and serve his Notice of Intention to Oppose. Regardless, an ex-parte application is brought before the court to request permission to continue to the final hearing. The court will then grant the eviction and the Sheriff can evict the unlawful occupier in terms of the order.

Going to trial

If the matter is opposed it moves to trial. Before a court can grant an eviction it has to consider all the relevant circumstances and be in a position to rule that the eviction is just and equitable. The court hears the arguments of both landlord and tenant. This is done through affidavits. The owner of the property approaches the court on the basis of ownership and the unlawful occupation. It is the tenant’s responsibility to then raise special circumstances to defend their case. The court will take into consideration the rights of any elderly occupants, children, disabled persons and households headed by women when granting the eviction. 

Term of occupancy

The tenant’s length of occupation is a key factor in the court’s decision. In terms of section 4 of PIE, if the tenant has occupied the property for less than six months, the court must appraise “all relevant circumstances…” before making an order. However, if the term of occupancy has been longer than six months, there is an additional requirement on the court. It must determine “whether land (or alternative accommodation) has been or can reasonably be made available … for the relocation”. If the eviction is lawful and the tenancy has been in place for more than six months, the lack of alternative accommodation constitutes a reasonable defence. The government has a duty to provide all citizens with housing and the tenant must have access to alternative housing. If not, the eviction cannot be granted. The eviction will have been successfully opposed.

Need help with an opposed eviction?

SD Law is a law firm in Cape Town and Johannesburg with specialist eviction lawyers. If you need advice on lease agreements, need to oppose an eviction or deal with a tenant’s defence, or any other aspects of landlord-tenant relations, contact Cape Town attorney Simon Dippenaar on 086 099 5146 or email sdippenaar@sdlaw.co.za.

Further reading:

Urgent evictions South Africa

Urgent eviction order – why and how you might secure one

By | Eviction notice, Evictions, PIE, Tenants

Your tenant is causing havoc – how do you secure an urgent eviction order?

Under the current alert level of the Disaster Management Act (Adjusted Alert Level 4), eviction orders can be applied for and granted but not implemented. They must be “stayed”, or suspended, until either the Disaster Management Act is withdrawn or such time as the government announces otherwise. However, there are exceptions. An eviction order can be effected if it is just and equitable to do so. In some circumstances, an eviction is urgently required.  What is the process for securing an urgent eviction order? 

Determining “just and equitable”

We’ve covered the rules that currently apply to evictions in detail in a recent blog post. Here’s a reminder. A landlord wishing to evict a tenant must have regard for: 

  • The need for everyone to have a place of residence and services to protect their health and the health of others and to avoid unnecessary movement and gathering with other persons
  • The impact of the disaster on the parties
  • Whether affected persons will have immediate access to an alternative place of residence and basic services
  • Whether adequate measures are in place to protect the health of any person in the process of a relocation
  • The occupier’s behaviour, e.g. if they are causing harm to others
  • The steps the landlord has taken to make alternative arrangements of payment of rent to preclude the need for relocation

“Harm or threat”

A normal eviction takes between six and 12 weeks to finalise. An urgent eviction can be requested in instances where the landlord can prove there is a danger of imminent harm or threat to the property if the tenant is not evicted immediately. This harm or damage may not be to the landlord or the property itself; there can be the risk of damage to any person or property, as long as the harm has commercial value. For example, the harm could impact on neighbours or the communal area in a sectional title unit. 

A question of balance

In considering an application for an urgent eviction order, the judge will consider the likely hardship to the property owner (or any other affected person) versus the likely hardship to the unlawful occupier. The landlord will have to prove to the court that there is no other effective remedy available. A court will not issue an urgent eviction order lightly and all other possible solutions must be explored and exhausted before making the application. An urgent eviction order is a last resort. 

An urgent eviction application, like a normal eviction application, can be brought in both the High Court and the Magistrate’s Court. The Constitutional Court has upheld the constitutionality of urgent evictions but has cautioned against the abuse of tenants. Any landlord seeking an urgent eviction must comply with all elements of the law before proceeding with the application.

For further information

SD Law is a law firm in Cape Town and Johannesburg with specialist eviction lawyers. If you need to apply for an urgent eviction order, or just want advice on lease agreements or other aspects of tenant relations, contact Cape Town attorney Simon Dippenaar on 086 099 5146 or email sdippenaar@sdlaw.co.za.

Further reading:

PIE and Airbnb or guest houses – eviction rights and wrongs

By | Evictions, PIE

PIE & Airbnb – are your guests protected?

 

What happens when guests book into an Airbnb property or a guest house and then refuse to leave? This happens more often than you might think, especially with Airbnb lets, because the hosts are usually ordinary homeowners with a bit of extra space, which they let out to supplement their income. Airbnb is built on the premise of the “sharing economy”, where people share underused assets for cash. The sharing economy is based on a peer-to-peer business model rather than a conventional commercial paradigm. Because most Airbnb hosts are not professional landlords, guests may take advantage of the more relaxed relationship. This happens particularly when a property owner rents out a home that is not occupied. This occurred when a group of activists outstayed their rental period in a Camps Bay mansion last year. 

Evictions under lockdown

The past year has been unusual…some would say unprecedented. We have been living under a national state of disaster, of varying levels, which has impacted on normal policies and procedures. Under Alert Levels 5 and 4, no evictions were permitted. Under the first round of Level 3, a court could grant an eviction order if it was just an equitable, but even then it would be “stayed” until  after the national state of disaster was lifted, or such time as the rules allowed. Under Alert Level 1, the courts could grant an eviction order, allowing tenants a reasonable time frame to find alternative accommodation and vacate the property. Landlords had a duty to prove the eviction was just and equitable.

Then we found ourselves back in Alert Level 3 – “adjusted”. Under these rules, evictions were once again being granted but not executed, but the court would allow an eviction if it believed it was not just or equitable to suspend or stay the order. This might occur if, for example, an occupier was causing harm to others or posing a threat to life, or if the party applying for the order had taken reasonable steps in good faith to make alternative arrangements with all affected persons.

Alert Level 1 – adjusted

We are now, at time of writing, living under an adjusted Alert Level 1. The prohibition against eviction remains. In the words of the Disaster Management Act Regulations: “A person may not be evicted from his or her land or home or have his or her place of residence demolished for the duration of the national state of disaster unless a competent court has granted an order authorising the eviction or demolition.” However, the Act goes on to cite a range of conditions that must be met in order for an eviction order to be executed, reflecting the circumstances that existed during Alert Level 1 the first time round.

PIE & Airbnb: what does this mean for Airbnb hosts and guest house proprietors?

Amidst the ever-evolving regulations and the general confusion that prevails regarding rental housing and many other aspects of life under lockdown, it’s not surprising that some guests are taking their hosts for a ride. They claim protection not only under the Disaster Management Act but also under the Prevention of Illegal Eviction Act – PIE.

However, PIE does not apply to guest houses, hostels or Airbnb premises. A case appeared before the Western Cape High Court 10 years ago – Yussuf and Another v Ye Khan Investments CC and Another. Applicants claimed that the premises they occupied constituted a hostel and not a guest house, and they were entitled to protection from eviction.

The judge found for the respondents, saying that the PIE Act “…was passed to provide some protection to squatters and other persons who were occupying land or premises unlawfully and without any leases because they were desperate and had no other form of shelter or home.” A guest house does not qualify for protection in terms of the PIE Act because “…occupants in a guest house are occupying the premises for a fixed period of time with the express consent of the owner or the person in charge of the premises. This is a commercial property, like a hotel, which provides for short-term occupation of persons who are visitors and not to persons who are long-term occupiers of land or property because they have nowhere else to live.” 

Protection for destitute persons

The judge continued, “I also do not accept that there is a difference between a ‘guest house’ and a ‘hostel’ which would render the latter susceptible to the provisions of the Pie Act, but not the former…That is not the purpose of the Act or the Constitution which provides protection to persons who are destitute and have taken refuge in some or other property because they have nowhere to live. The Act cannot be applicable to persons who move into a guest house or hotel.”

PIE & Airbnb – is it different from a guest house?

Airbnb was founded in 2008 but did not arrive in South Africa until 2010. At the time of the judgment referred to above,  Airbnb was not a significant player in the accommodation industry and did not merit a mention in the case. However, despite being untested in case law, Airbnb functions as a guest house or hotel for its users and is usually chosen as an alternative to these types of traveller accommodation. Therefore, it is hard to imagine an Airbnb guest being treated any differently in law to a guest house or hotel guest.

Get professional help from a leading eviction attorney in Cape Town

If you are an Airbnb host or guest house/hotel proprietor with a guest who won’t leave when they are due to check out, give eviction attorney Simon Dippenaar a call or send a WhatsApp to 086 099 5146. SD Law is Cape Town law firm with expertise in property matters including rental housing, eviction and conveyancing. We can help you resolve your eviction case swiftly and legally. You can also email Simon at sdippenaar@sdlaw.co.za.

Further reading