How to prevent an eviction of a non-paying tenant from being illegal
Legal Tip of the Week - A finger in the PIE: Prevention of Illegal Eviction from Unlawful Occupation of Land Act
How to prevent an eviction of a non-paying tenant from being illegal
You have property and have rented it out. The tenant has decided that he can no longer afford the rent, and no letters or threats seem to make any difference to this cause. The tenant not only refuses to pay the rent, but he also fails to vacate the property.
To put icing on the cake, the law provides more protection to the tenant than ever before. It comes as no surprise that landlords feel that the current legislation enables the tenant to avoid paying rent and also offers much more protection to tenants' interests and rights than to those of the landlord.
Times have changed, and to simply replace the locks of the premises will offer no quick solution. In reality it is very difficult to evict unlawful tenants rightfully from the property, and therefore it is very important for landlords to use the prescribed procedures as contained in the PIE Act.
In short, the Prevention of Illegal Eviction from Unlawful Occupation of Land Act (PIE) is described as legislation that aims to protect both the tenant’s and the landlord’s interests and rights simultaneously. This legislation prohibits not only unlawful eviction, but also allows for legitimate expulsion of unlawful tenants.
Procedures as prescribed by PIE
Firstly, it is important to cancel the lease due to non-payment, as per the notice period prescribed by the lease agreement, or with one calendar month’s notice in accordance with the common law.
An ex parte application (an application without notice to any party) must be brought at the appropriate court in order to obtain the necessary permission from the court to initiate PIE procedures. This application is brought by way of two notices supported by a sworn affidavit.
The affidavit must allege the following:
Unlawful occupation;
Reasons for the requested eviction; and
Why it is just and equitable to evict the unlawful occupant.
Once the application has been issued, the sheriff of the court serves notices, advising of intention to institute action, on the local municipality, the unlawful occupier and on all those holding title under him. The local municipality as well as the unlawful occupant has to be given 14 days' notice of this hearing.
On the day of the hearing, the unlawful occupier will be given the opportunity to show good cause as to why an eviction order should not be granted. The court will only grant an eviction order after considering the relevant circumstances as well as what is deemed as just and equitable. The unlawful occupier may rely on special circumstances to avoid immediate eviction.
In practice, courts have regard for the following:
the rights of elderly persons;
children;
disabled; and
households headed by a woman.
However, the court has wide discretion to grant an appropriate date on which the unlawful occupant has to vacate the property, and a date when the actual eviction order is to be effected.
In general, the PIE procedures are described as lengthy, and depending on the circumstances it often takes a long time before the unlawful occupier actually vacates the property. During this time the property owner does not receive an income from his property whilst still being required to pay the bond.
Landlords ... Instead of allowing the unlawful occupier to frustrate you to the point where you want to break someone’s legs, rather take a piece of the PIE, and make it your first priority to evict the tenant from your property.
(This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.)