Trouble evicting your tenant?

If you are stuck with a tenant that won’t pay rent and won’t leave your premises, you have a bit of a problem, as the Prevention of Illegal Evictions Act will not allow you to evict your tenant without a court order. Things are looking up however, as proposed amendments to the law will make it easier for you to get rid of defaulting tenants.

The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act No 19 of 1998 (also called PIE) provides fair procedures for eviction of unlawful occupants and prohibits unlawful evictions. Everybody is covered by this Act — both illegal squatters and defaulting tenants, which makes the buy-to-let option a bit daunting.

Eviction – as it stands

As the law states at the moment, you have to give the tenant a letter stating that you want them to leave. This must happen before you go to the court to get an eviction order. You have to give at least two weeks notice before going to court, and the notice must say on what date the court hearing will take place and where it will take place. You also have to give a copy of this notice to the local authority.

Furthermore, the court will only give an eviction order if it is proved that; you are the owner of the land; the person occupying your property is an unlawful occupier; and you have reasonable grounds to evict the occupier.

The court will assess whether you are in fact an unlawful occupier and whether the owner has reasonable grounds to evict you. In its decision, the court will take into account whether there is alternative accommodation available.

Proposed amendments

The proposed amendments to the Prevention of Illegal Eviction Act could benefit landlords considerably, as they will now no longer need to pay legal fees in order to evict defaulting tenants.

The long-delayed amendments have finally been published in the Government Gazette for public comment.

The amendment bill proposes to exclude from the ambit of the act tenants or mortgagors who refuse to vacate land after their leases are cancelled or on foreclosure of their bonds. And states that the act should cover only those persons who unlawfully invade land without the prior consent of the landowner or person in charge of land — thus not tenants.

It comes down to consent

Bill Rawson, chairperson of Rawson Properties says that, "these amendments seek to free private residential landlords and banks from the full rigours of the PIE Act, after the Appeal Court ruled in August 2003 that the Act, which previously only applied to illegal squatters, should also apply to evicting tenants".

In the past this has meant that landlords may not lawfully evict a tenant from his premises unless he obtains a court order to authorise the eviction.

Rawson says that a memorandum on the objects of the Bill, attached to the Government Gazette published on 22 December last year, states that the intention of the original Act was to cover only those persons who unlawfully invade land without the prior consent of the landowner or person in charge of land, and never to tenant and mortgagors who default in terms of their prior agreements with landlords and financial institutions.

No more legal fees

“In terms of proposed amendments to other legislation, the Rental Housing Act of 2002, landlords will also no longer need a court order to get an eviction, as the Rental Housing Tribunal has now been given the authority to grant eviction orders after a hearing.

"This will mean that landlords will now no longer need to pay legal fees in order to evict defaulting tenants, a considerable improvement," says Rawson.

Another key amendment will remove the distinction drawn in the PIE Act between persons illegally occupying a property for less than six months and those doing so for more than six months, where eviction proceedings in court are concerned.

Peace of mind

According to Rawson these proposed amendments will serve as an encouragement to investors to invest money in buy-to-let property.

“Many have been understandably cautious of this investment opportunity, as they didn’t want to be stuck in a situation where a defaulting tenant is staying in their property and refusing to move.

“With rising interest rates and the increasing cost of property, this could make more letting units available on the market and thus serve to address the housing shortage in South Africa.”

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