When does my tenant become an unlawful occupier?

The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (the Act) defines an unlawful occupier as a person who occupies land without the express or tacit consent of the owner or person in charge, or without any other right in law to occupy such land.  The definition includes occupiers who occupied lawfully but whose occupation became unlawful. This includes all tenants of residential property in respect of which the leases have been cancelled or have expired.

The Act drastically changed the landscape in respect of evictions and established a definite distinction between commercial property and residential property, thus the Act only applies to residential properties.

In order to evict an unlawful occupier (tenant) from residential property, one must comply with the procedure set out in terms of ss 4 and 5 of the Act. Basically, the lessor has to obtain a court order to evict an unlawful occupier. Sections 4 to 6 of the Act provides for procedure in case of evictions (including for urgent eviction).

For eviction proceedings to commence and for a tenant to become an unlawful occupier the lease has to be cancelled lawfully, and such cancellation has to be communicated to the tenant. The cancellation of a lease may further be subject to the provisions of section 14 of the Consumer Protection Act, which requires 20 business days written notice of cancellation of certain fixed-term leases, despite any provision of the agreement to the contrary.

So, things to keep in mind:

  • Have a well-drafted lease agreement, as evicting unlawful occupiers can be hard enough, not to add further complications if you have a badly drafted lease agreement or even worse, a verbal lease agreement.
  • Seek legal advice.
  • Evictions proceedings ARE time consuming AND costly, therefore it is crucial that you remain patient when dealing with these matters.
  • Lastly, it is crucial that you do a thorough pre-screening of the applicant pre signing a lease agreement. An upfront due diligence can go a far way in helping identify bad tenants and avoiding time-consuming eviction processes at a later stage.

Article written by Natasha Otero, Associate at Rubensteins Attorneys.

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