Written for Property Poser
This week our Property Poser panel of experts revisits the eviction procedure in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land (PIE) Act.
The matter was raised again recently by a reader who purchased a property more than two years ago. She writes that the previous owners could not keep up with their bond payments and that the house was sold in execution.
The problem, however, is that the reader has been unable to take possession of her new property because the previous owners refuse to vacate the premises. She is thus in the unfortunate position of having to make bond and utility payments on a property she cannot enjoy.
The reader wants to know whether she can obtain assistance from the police to remove the unlawful occupiers from her property.
Because there was never a lease agreement in place, says Charl Crous from Du Toit Strömbeck Attorneys in Port Elizabeth, the residents should have vacated the property when it was sold and transfer taken by the new owner.
“However, in terms of the provisions of the PIE Act, no one may be evicted from a property without a court order – so approaching the police for direct assistance would be futile.”
Crous says the reader mentions that the agent has taken the illegal occupiers to court on a number of occasions but that the matter has thus far been postponed because they either fail to arrive at court or have instructed a new lawyer.
While it is unclear on what basis the agent took the occupants to court, Crous says the legislation plainly sets out who has the necessary legal standing to take advantage of the lawful remedy.
“The PIE Act makes it clear that it is the owner or person with the required authority who can take action,” says Crous.
Charlotte Vermaak from Chas Everitt in PE concurs that the landlord must institute action to start the eviction procedure.
“A notice containing certain provisions and authorised by a magistrate must be served on the unlawful occupiers and the municipality at least 14 working days before the eviction hearing,” says Vermaak.
“Obviously, this notice allows the occupier to raise an opposition to the action for eviction.”
According to Vermaak, the court will determine whether the landlord is entitled to evict the occupier at a hearing of the matter. The court must consider any issues referred to in the PIE Act, including the rights and needs of children, the elderly and households headed by women.
If the court finds that the owner is entitled to an eviction order, it will also determine the date upon which the unlawful occupier must vacate the premises, says Vermaak.
“The owner may ask the sheriff with the necessary jurisdiction to remove the occupiers should they still not vacate the premises on the due date.”
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