Information on Evictions:
The PIE Act (as it is more commonly known) plays a big role when the relationship between lessors and lessees turn sour. The PIE Act applies to unlawful occupiers of land situated in both rural and urban areas. The ESTA Act (Extension of Security of Tenure Act 62 of 1997) only applies to “occupiers of rural land”. In the context of lease, residential lessees of rural land will by definition be ESTA occupiers and so PIE will by default only apply to lessees of urban land.
The PIE Act sets out procedural and substantive requirements that must be satisfied before a Court may grant an order for eviction. The procedural protection that PIE affords lessees is that the Court must, at least 14 days before the matter is due to be heard (in Court) serve written notice of the Court proceedings on the lessee and the local municipality. If the lessee has been in occupation of the property for more than 6 months, which will be the case in the majority of lease-related PIE cases, the municipality must furnish the Court with a report on its ability to provide alternative accommodation, should the lessee be evicted.
When granting an eviction order the Court does not simply look at whether the lease was properly terminated. The Court has to decide whether the granting of an eviction order will be just and equitable taking into consideration all the relevant circumstances in a case. The Court can decide what is deemed to be relevant in each case, but the Act stipulates that the rights and needs of the elderly, children, the disabled and households headed by woman must be taken into consideration. In addition and if the lessee has been in occupation for longer than 6 months, the Court must consider whether alternative accommodation has been or can reasonably be made available by the municipality, another organ of state or another landowner. When the property has been sold in a sale in execution pursuant to a mortgage, the Court need not consider the availability of alternative accommodation even if the lessee has been in occupation for longer than six months.
When the lessee seeks to rely on his/her personal circumstances in resisting an eviction order, it has been held that the evidential onus is on the lessee to ensure that all relevant information is placed before the Court. The Court is nevertheless expected to be proactive in satisfying itself that all relevant information has been placed before it, utilising its powers to investigate and to call for further evidence when necessary.
The rights of all the parties involved are taken into consideration- The lessee’s personal circumstances VS the harm suffered by the lessors, third parties and the public. The Court therefore takes all relevant repercussions- national, social and economic into consideration when deciding if it is fair and equitable to evict a lessee.
It can also be noted that PIE can give rise to serious abuses, particularly when able-bodied lessees in regular employment exploit the provisions of PIE to delay their eviction, while parasitically occupying the property to the financial detriment of the lessor.
It has been held that unlawful occupiers cannot expect to remain in indefinite occupation at the expense of the lessor/owner. It has also been held that it will generally not be just and equitable to grant an eviction order where the effects of the eviction order would be to render the occupiers of the property “homeless” due to their inability to afford alternative accommodation.
Under the PIE Act a Court must grant an order for eviction if the lease was lawfully terminated and it is of the view that it would be just and equitable to grant the eviction.
“Amended Extract from Principles of the Law of Sale & Lease”- 3rd Edition- G Bradfield and K Lehmann”-
TIPS FOR LESSORS!!!!
1. Consult an Attorney to draft a proper lease agreement.
2. When a lessee falls in arrears take immediate action against him by sending off a letter of demand for outstanding costs (i.e. rental, municipal accounts etc.)
3. When a lessee fails to comply with the letter of demand cancel the lease agreement and request that he and all occupiers vacate the property.
4. Send all correspondence in accordance with the “breach” and “domicilium” clauses stated in the lease agreement. Most lease agreements stipulate that notices must be sent via registered mail and/or delivered by hand to the leased premises. Should you deliver notices by hand make sure the lessee signs for the notice.
5. Make sure you comply with the time periods stated in the lease agreement.
6. Keep copies of all notices sent;
7. Keep the original registered slips.
A TIP FOR PURCHASERS WHEN BUYING A PROPERTY OCCUPIED BY TENANTS!!!!
1. Make sure the deed of sale guarantees vacant occupation on transfer.
2. If not, make sure the Transferring Attorneys retain monies of the Sellers on trust pending the outcome of the eviction application.
For further queries and/or tips please contact Janine Smit- (021 943 5111) and/or email her at Janine@esilaw.co.za.