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Tenants

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:

7 tips for a successful eviction order

By | Eviction notice, Evictions, Tenants

It’s never nice to evict a tenant, but sometimes it is necessary. Follow these 7 tips to ensure a smooth process for you both.

 

Have you reached the end of your tether with a troublesome tenant? Or has your tenant ignored your notice to terminate the lease contract due to a breach on their part? Have they stopped paying rent or utilities? Whatever your reason for eviction, follow these 7 tips to ensure a successful eviction order.

  1. Engage a specialist. Evictions are technical and the courts are quick to throw a matter out if it fails to comply in any legal or technical manner. That means a waste of time and money, and will only add to  your frustration. Use the services of an attorney who is experienced with evictions and will get it right first time.
  2. Don’t try to evict the tenant yourself. This is illegal and can set the whole eviction back by months, wasting a lot of money. You may legitimately feel you are being exploited and have lost control of your property. It can be very tempting to try to find ways to get rid of the illegal tenant yourself. Resist the temptation. You could find yourself on the wrong side of the law. 
  3. Likewise, don’t cut off electricity, water or other utilities. The illegal occupant may have run up a huge bill, leaving you financially exposed. You may feel justified in disconnecting the services and you may hope it will force the occupants to leave. But this is illegal and can severely damage your case.
  4. Don’t harass the tenant. Constant calls or emails to the tenant or visiting the property in person is a counterproductive strategy because the tenant could obtain an interim protection order against you for harassment. Then you’d have two problems to deal with rather than one and your reputation could be damaged.
  5. Have faith in the process. Allow the relevant legislation to work in your favour. Trust the system, even if it seems unfair. If you follow correct procedure, the law will help you, and your eviction will be successful.
  6. Consider negotiating. An eviction application is the formal way forward, but this should be combined with an attempt to negotiate the illegal occupant’s exit. Let your attorney do this. Don’t attempt it yourself. Very often there are ways to convince an illegal occupant to leave rather than face litigation. Quite often they listen to reason and agree to vacate before you spend more time and money.
  7. Be patient. One of the hardest aspects of the eviction process is the need for patience. You have to wait for the process to follow its course. Evictions are not simple, and they take time. A good eviction attorney will ensure it takes as little time as possible. You just need to hang in there.

Need a good eviction attorney?

SD Law is a 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. Give eviction attorney Simon Dippenaar a call or send a WhatsApp to 086 099 5146. You can also email Simon at sdippenaar@sdlaw.co.za.

Further reading: