Category

PIE

Jan 16
0

Evicting unknown occupants

By | Evictions, PIE, Rental Housing Act

How to evict tenants when you don’t know who they are

If you own property you don’t live in, at some point you may be faced with illegal occupants – squatters. Squatters may be – and often are – known to you. Your tenants have stopped paying their rent but fail to vacate the premises. Unpleasant and inconvenient as it is, there is a defined process for evicting non-paying tenants, or occupants in breach of any other condition of the lease. But what happens when you don’t know who the occupants are? This is not as unlikely as it sounds. Perhaps you have relocated from one city to another and your former home is on the market but unsold at the time of your departure. You relocate, taking your possessions with you, and the house is unoccupied. Seeing an opportunity, squatters manage to breach your security defences and move in. Even though their occupation is unlawful, they now have certain rights and you must follow due process to reclaim your property. How do you evict unknown occupants? 

Just such a case happened in Mpumalanga, though this case involved a municipality rather than a private landlord. The case of Emakhazeni Municipality v Ngubeni provides critical guidance as to how municipalities, landlords and other property owners can handle eviction proceedings when the identities of the occupants are unknown. This decision by the Mpumalanga High Court highlights the steps that must be taken to ensure an eviction is lawful and procedurally fair, even when the people occupying the property cannot be specifically named or served with legal documents.

Case summary

The Emakhazeni Municipality sought to evict individuals who had been living on municipal land without legal rights or authorisation. Ngubeni was named as the respondent in the eviction application, while the identity of the remainder of the occupants was unclear, as there was no precise information about who else was occupying the property.

The municipality argued that the land was illegally occupied and therefore applied for an eviction order. However, the unknown identity of the other occupiers raised questions about how the eviction process could be properly served.

Court’s findings

The court recognised the municipality’s right to seek eviction of unauthorised occupants but emphasised several important considerations in ensuring the eviction was lawful and fair:

  1. Notification and service of process: One of the central issues in the case was the correct service of the eviction application on the unknown occupiers. The court ruled that, even in situations where the occupiers cannot be individually identified, the notice of eviction must still be directed to the “unknown occupants” of the property. 

This is essential to ensure the eviction process adheres to the principles of natural justice, giving anyone residing on the property an opportunity to respond. Importantly, while personal service is the ideal method for informing an occupant of eviction proceedings, the court acknowledged that, in cases involving unknown individuals, alternative forms of notice may be acceptable. This could include posting the notice on the property or other reasonable steps to alert the occupiers.

  1. Reasonable steps to identify occupants: The municipality was required to take reasonable steps to ascertain who was living on the property. This could involve physical investigation, consulting local records or using other means to identify the individuals occupying the land. Assuming the named individual (Ngubeni) was the only person occupying the land would not suffice.

The court stressed that landlords and municipalities must demonstrate they have made diligent efforts to confirm the identities of all those living on the property. In this case, failure to identify the other occupants adequately could undermine the eviction application.

  1. Fairness in the eviction process: A central theme in the judgment was the need for fairness. The court emphasised that, even if the identities of the occupiers are unknown, the eviction process must respect their constitutional right to a fair hearing. This includes giving them the opportunity to oppose the eviction or show cause why they should not be evicted, regardless of their unknown status.

The court pointed out that any eviction that proceeds without fair process could be challenged and potentially set aside, especially if it can be shown that proper procedures were not followed.

Lessons for landlords and municipalities

The Emakhazeni Municipality v Ngubeni case provides essential insights for landlords, municipalities and property owners who face the challenge of evicting unknown occupants. Key considerations include:

  • Take reasonable steps to identify occupants: Landlords should conduct a thorough investigation to determine who is occupying the property. Naming one individual in an eviction application, without confirming whether others are living there, is insufficient.
  • Service of eviction notices to unknown occupants: In cases where the identities of the occupiers are unknown, landlords or municipalities should serve notices to the “unknown occupants” of the property. This ensures that anyone residing on the land is informed about the eviction proceedings. If personal service is not possible, other forms of notification, such as posting the notice at the property or publishing it in local newspapers, are generally considered appropriate. However, landlords should be careful to follow the legal requirements closely.
  • Procedural fairness: The right to a fair hearing is a cornerstone of South African law, particularly in matters related to eviction. Even if occupiers cannot be specifically identified, they must be given a reasonable opportunity to contest the eviction. Failing to offer an adequate opportunity to respond could render the eviction process unfair and subject to legal challenge.
  • Legal advice and guidance: Given the complexities of eviction cases, especially when dealing with unknown or unidentified occupants, landlords and municipalities are strongly advised to consult with legal professionals. An attorney will ensure the eviction process follows the correct procedures, preventing delays and the risk of a void or invalid eviction order.
  • Alternative solutions: If the eviction involves vulnerable groups or occupiers who are unable to be identified, landlords should explore alternative solutions. This could include negotiating temporary relocation, offering accommodation assistance, or pursuing other legal remedies that do not immediately result in displacement. However, this may be more feasible for municipalities than for private landlords.

For further information

Whoever your tenants are, whether they are known to you or not, taking reasonable steps to identify occupants, serving notices correctly, and ensuring procedural fairness are essential components of a lawful eviction. If you adhere to these principles, you will avoid costly mistakes and ensure the eviction process is carried out smoothly and justly.

Eviction lawyers SD Law can answer your questions about rental housing rights and advise you on eviction procedure if it becomes necessary. Contact one of our eviction attorneys on 086 099 5146 or simon@sdlaw.co.za. Simon Dippenaar & Associates, Inc. is a law firm of specialist eviction lawyers in Cape Town, Johannesburg and Durban working hard to help landlords and tenants maintain healthy working relationships. 

Further reading:

Oct 18
0

Court won’t allow eviction of ‘unlawful occupants’ at old age home

By | Appeal of an eviction order, Eviction news, PIE

Reprinted from TimesLIVE, by Rorisang Kgosana – 2024-10-17

The City of Johannesburg’s leave to appeal a high court judgment that denied an urgent eviction order to remove unlawful occupants from a retirement village was refused by the Johannesburg High Court as the law it was challenging was “unappealable”.

The 183-unit complex, aimed at SASSA beneficiaries older than 63 who entered into a lease agreement with the city, was now home to younger people and their children as over the years people would move in with their elderly relatives while some would remain in the unit even after the relative passed on, a resident told TimesLIVE.

The centre is now exposed to petty crime while facilities and units are dilapidated and remain unmaintained by the city.

In his judgment, judge Stuart Wilson, who had presided over the initial urgent matter, said the application was unappealable as it challenged section 5 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land (PIE) Act. The provision permits only urgent eviction when there is a “real and imminent danger of substantial injury to people or property” by an unlawful occupier.

“Orders under section 5 of PIE are interim in nature. They are granted or refused ‘pending the outcome of proceedings for a final eviction order’. Their interlocutory nature naturally raises the question of whether and to what extent decisions under section 5 are appealable,” said Wilson.

He said the decision to refuse a section 5 eviction order does not prevent the application from seeking relief under section 4 of the act, and the unlawful occupier will remain at the property until the proceedings are finalised.

“Accordingly, it seems to me that the refusal of relief under section 5 is not appealable. To hold otherwise would open the door to undesirable piecemeal litigation. Every refusal of relief under section 5 could, in principle, spawn an appeal, which would have to be addressed in parallel with, or before, the applicant’s entitlement to final relief under section 4 is considered.

“To permit the fractional disposal of eviction applications under PIE in this way would lengthen and complicate PIE proceedings, which are often already factually and legally complex matters, especially where poor and vulnerable people allege that they would face homelessness on eviction.”

He said the city had no reasonable prospect of convincing a court of an appeal that he was wrong in his judgment when he decided that section 5 requires it to link those it seeks to evict with “real and imminent danger of substantial injury to people or property”.

“Mr Nhutsve, who appeared for the city, advanced no alternative reading of section 5, which would permit the city to evict individuals or groups of people who had not been linked to a ‘real and imminent danger of substantial injury to people or property’. In the absence of such a reading, there can be no success on appeal,” said Wilson.

He said the city admits it wants to evict people who provide care to lawful residents of the complex, which those residents cannot do without.

It was on that basis that Wilson found that the relief sought would “endanger the safety and wellbeing of the very people the city says it wishes to protect”.

The city also raised issues of the hearing, arguing that it did not get a fair hearing as its counsel, Nhutsve, was not allowed to present his prepared speech to the court but was instead required to answer the court’s questions about whether the facts on the papers justified the relief sought.

“The city did not produce a transcript in support of its claims. Mr Nhutsve was accordingly constrained to advance his complaints about the fairness of the hearing from memory … I do not recognise Mr Nhutsve’s recollection of the hearing. The hearing lasted for about an hour, about 45 of which consisted of an exchange between me and Mr Nhutsve about the papers and the relief sought. The exchange was robust but respectful. I listened carefully to Mr Nhutsve’s submission, and had due regard to them in my judgment.”

Wilson said the city’s complaints about the way he conducted the hearing do not have a bearing on the correctness of his decision. In addition, Mr Nhutsve could not point out any submissions that he failed to make due to being interrupted.

“It was for these reasons that I refused the city’s application for leave to appeal.”

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 an urgent eviction matter.

Further reading:

Aug 14
0

Pitfalls of eviction

By | Evictions, PIE, Tenants

How to avoid the traps that will scupper an eviction

Have you reached the end of the line with problem tenants? You’ve tried negotiating, pleading, and maybe even formal mediation, but you can’t resolve your differences and your tenants are in breach of their lease. Eviction is a last resort. It’s not a pleasant process and you may even like your recalcitrant tenants and want to avoid conflict. Eviction is time-consuming and costly, both in the short and long term. Eviction itself carries costs but, worse, your property might remain unoccupied for a while before you find suitable new tenants, depriving you of income. Unfortunately, sometimes eviction is necessary. If you do have to evict your tenants, how can you avoid the pitfalls and make sure you meet the correct conditions for eviction?

Legislation

Evictions in South Africa are governed by the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE). The Rental Housing Act and the Consumer Protection Act (CPA) set out further conditions that must be met before an eviction can proceed. Property owners often make mistakes that prolong the eviction process. Avoid them for a hassle-free eviction. We go through the most common blunders below.

Failure to provide proper notice 

The conditions required for a lawful eviction to proceed are set out in the legislation cited above. Importantly, you must give your tenant sufficient notice in the correct manner. To evict a tenant you must give them notice of the breach and time to rectify the breach. If the breach is not rectified within the specified time frame, you can then terminate the lease. If the tenant does not agree to vacate the premises, you may apply to the court for an eviction order. Failure to follow the correct procedures can result in the eviction being declared unlawful and dismissed. 

Inadequate documentation 

A well-drafted lease agreement is essential and records should be kept of all communications with the tenant, especially regarding rental arrears and notices. The legal burden is on you to prove in court that the eviction is both just and right. Therefore, make sure you have sufficient evidence to back up the claim.

No valid reason for eviction 

You must have a valid and legal reason for evicting someone. Common reasons include non-payment of rent, breach of the lease agreement or the need to use the property for personal use. The eviction must be based on legitimate grounds. 

DIY evictions 

Landlords sometimes attempt to evict a tenant alone, without going through the courts. It is illegal to take the law into your own hands and forcibly evict tenants or cut off essential services such as water and electricity without a court order. Removing a tenant using threats, intimidation, harassment, or physical altercation opens the door for tenants to pursue criminal action against you. 

Incomplete maintenance and repairs 

Failure to address maintenance issues promptly can be used by tenants as a defence during eviction proceedings. You have a responsibility to maintain a safe and habitable property and you cannot purposefully make the property uninhabitable in any way. You should complete essential repairs or maintenance promptly. 

Failure to take legal advice 

One of the most common eviction mistakes is failing to take professional advice. Consulting a legal professional experienced in evictions and property law is crucial to making sure you follow the correct eviction process. Evictions are stressful and complicated; an understanding of the applicable laws is vital. The process can drag on and you may be tempted to take shortcuts, usually out of frustration. However, the consequences of not following the proper steps can be significant and result in further delays, costs, and possible legal action. 

Consult an eviction specialist

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 necessary, we assist with eviction, ensuring it is carried out 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.

Further reading: