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LANDLORD AND TENANT - FAQ's

Landlord and Tenant – hundreds of thousands of individuals, couples and family rent accommodation in South Africa, and it is important that the rights of tenants are respected. Similarly, many people buy second homes as an investment, and their rights as landlords too must be respected – the law of Landlord and Tenant aims to strike a balance between the rights of the respective parties.

If you are a Landlord or intend becoming one it is not advisable to draw up your own contract of lease or rely on an ‘off the shelf’ form so readily available these days. Regrettably many of the forms are used by estate agents and letting agencies. It will also not give you the necessary protection – each contract is different and unique, and requires the services of an attorney. At the very least ‘look over’ the contract you are about to sign. By having a contract drawn up to suit your individual requirements many pitfalls and problems can be avoided later on and ensures your valuable property rights are protected at all times. You will also require the services of an attorney to collect rental arrears, to claim damages and evict your tenants should this be necessary.

The Rental Housing Amendment Act 35 of 2014 (The Act) will come into operation on a date to be proclaimed. The Amendment Act will have a big impact on the rental industry, and landlords and tenants. The aim of the Amendment Act includes to-

  • set out the rights and obligations of the tenants and landlord in a coherent manner
  • require leases to be in writing
  • ensure that Rental Housing Tribunals are established in all offices
  • extend the powers of the Rental Housing Tribunals
  • provide for an appeal process
  • require all local municipalities to have Rental Housing Information Offices

 

  1. What constitutes a lease and what is meant by temporary use and enjoyment?
  2. What is the effect of the contract of lease?
  3. What are the duties of the lessor? (landlord)
  4. What are the duties of the lessee? (tenant)
  5. Who should sign the lease agreement?
  6. Is the landlord entitled to inspect the property?
  7. When must the deposit be refunded?
  8. Do tenants have a 7 days grace period to pay the rent?
  9. Can a lease be cancelled early or if the property is sold?
  10. Can a tenant claim for improvements made during the lease?
  11. My lease has come to an end. The owner now wants to use my rental deposit for maintenance and repairs that go beyond what is called ‘fair wear an tear’ from reasonable use of property. What are my rights?
  12. What happens to my deposit if I have signed a lease but have now received a transfer and cannot move in?
  13. What must I do if my tenant has not paid the rent?
  14. What sort of complaints are adjudicated by the rental housing tribunal?
  15. What are the functions of the housing rental tribunal?
  16. When is a tenant in illegal occupation?
  17. What is the law on evictions from rented property?
  18. What are some of the defences a tenant can have when faced with an eviction order?
  19. Who has legal standing to bring an order of eviction?
  20. What is a Section 4(2) notice and what are the Equity Provisions referred to in Section 4(6)?
  21. What type of legal action will my lawyer bring, and in which court will my lawyer seek an eviction order?
  22. What if someone is trespassing on my land?

 

let-light-legal-consultants 

 

1. What constitutes a lease and what is meant by temporary use and enjoyment?

 

A Lease is a contract between two parties whereby the lessor (owner, etc) agrees to give the lessee (tenant) temporarily useandenjoyment of a thing (house, etc) wholly or in part, for remuneration (rent).

Differences between a sale and a lease:

  • A sale intends to part with every existing right, including the right to destroy or diminish the substance of the thing owned - a lease only parts with the right, at most, to use the thing and gather and consume its fruits.
  • Sale intents to part permanently with the right to use and enjoy the property – A lease only parts with such a right temporarily.

The parties do not need to fix the term because where no term is fixed the law regards the term as periodic and terminable by means of reasonable notice given by either of the parties.

Movable and immovable property can be leased and no formalities are required.

The lease must also provide for monitory payment of rent.

Statutory regulations exist for restricting the amount of rent payable for certain premises and to extend occupation in regard to premises that The Rent Control Act of 1976 provides for.

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2. What is the effect of the contract of lease?

 

The lease may endure by means of agreement:

  • For a definite period,
  • Until a specific event happens,
  • For as long as the lessor or lessee pleases, or
  • From period to period, i.e. daily, weekly, monthly, yearly, etc.

The lease may be renewed on expiry of the lease by means of:

  • An express lease, i.e. exercising an option to renew as contained in the lease.
  • A tacit renewal, i.e. if lessor accepts rental and lessee keeps on using the property immediately after expiry of the lease,
  • A simpliciter renewal if terms of new lease are not fixed and without reference to specific clauses then it is presumed that the property is relet at same rent and same terms as previously, except in regard to collateral and non incidental terms.

The lease continues after disposal of the property by the lessor:

  • the principle ‘huur gaat voor koop’ (law takes note of rental first, then of a sale), applies,
  • Immovable property is taken subject to lease, by successor of lessor,
  • Successor acquires all the rights of the lessor, and
  • Successor also acquires all the duties of the lessor under the lease.

The lease may affect subletting, cession and assignment:

  • Subletting to third party by lessee is only valid between them and does not bind lessor, i.e. at termination of lease the lessor can evict the sublessee (3d party),
  • ‘Cession of a lease’ by lessee to 3d party does not constitute a new lease because he can only transfer his rights and not the lease itself,
  • Assignment is tripartite agreement between the lessor, lessee and a third party where the current lease is terminated and substituted with a new lease, with same terms as previously, and where the 3d person now becomes the lessee, i.e. a delegation agreement.

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3. What are the duties of the lessor? (Landlord)

 

  • The landlord must give the tenant occupation and control over the property, maintain the property in its proper and safe condition and ensure that the normal running repairs are carried out.
  • The Landlord must guarantee that the tenant will enjoy the undisturbed use and enjoyment of the property for the duration of the lease. The landlord must not interfere unlawfully with the tenants rights and only lawfully interfere in a reasonable manner, i.e. to make necessary repairs and to inspect the premises.
  • The Landlord must protect the tenant against being disturbed by third parties who may claim to have a stronger right to the property than the tenant, but is not obligated to protect the tenant against a disturbance of occupation by a superior force, such as an act of God.
  • The Landlord must pay all taxes and charges imposed by public bodies in respect of the property, but not for those charges of services requested by the tenant, i.e. electricity.
  • Place the tenant’s security deposit in a savings account which has the highest rate of interest for that financial institution and return the security deposit, plus all interest accrued, to the tenant minus any costs for reasonable repairs for damages caused by the tenant.
  • Provide proof to the tenant of any costs incurred through having a lease drawn up when passing on such costs to the tenant
  • Allow the tenant to receive visitors

The parties may also agree that the tenant pays the taxes and levies on the property.

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4. What are the duties of the lessee? (Tenant)

 

  • The tenant must pay the rent except if the landlord breaks the agreement or if possession of the property is disturbed by an act of God. In the absence of a specific provision that specifies the date for rental payment, the general rule that rent is payable in arrears, either upon expiry of the lease or expiry of each period (week, month, etc) of a periodic lease, will be enforced.
  • The tenant must use the property for the purpose for which it was let – or if not specified, for its natural function, i.e. as a home, etc. The tenant must always use the property in a reasonable manner as if the property of the tenant. It is practice to regulate the use of the property by the incorporation of regulatory terms in the lease.
  • The tenant must vacate the property leaving it in the same conditionas when possession of it was taken, with allowance for wear and tear. The tenant is responsible for any damages done to the property by servants, occupants or guests. The reasonable repair cost is usually accepted as prima facie evidence of the lessor’s loss through damages.
  • not use the premises for an improper purpose (for example, overcrowding, illegal activities and unregistered retail)
  • keep to the provisions of the lease as long as all the provisions are legal
  • keep the property clean and tidy

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5. Who should sign the lease agreement?

 

Any one over the age of 18 can sign a lease agreement.

  • From the landlord’s side it is preferable that all adults over the age of 18 years should be jointly and severally liable for the rent. Spouses have been known on occasion to hide behind each others credit profiles, and there are also many instances where siblings, co-workers and even friends enter into lease agreements where only one tenant signs the lease, but all the habitants will pay their portion of the rent. If all the habitants do not pay their portion – then the landlord can only sue or blacklist the person who signed the lease agreement and this may limit the landlord’s ability to recover non-paid rent.
  • From the tenants side, the tenant cannot object if the landlord demands that all adults over the age of 18 co-sign the lease jointly and severally liable. This means that if one of the co-tenants does not pay their portion of the rent, all the tenants become liable for the outstanding portion. Be clear to understand that your co-tenants inability to timeously pay the portion of their rent could affect your continued occupation of the property and possibly your credit profile.

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6. Is the landlord entitled to inspect the property?

 

  • The landlord or estate agent has a right to enter the property to do routine inspections, but only after arranging with the tenant to do so at a reasonable time, and with reasonable notice. The tenant may not unreasonably deny the landlord access to inspection. The landlord may not enter the property without the tenant’s consent, which may not unreasonably withheld.
  • In terms of the Rental Housing Act the tenant and landlord (or estate agent) must jointly perform ingoing and outgoing inspections. This is to place on record any defects and subsequent damage for which the tenant may be liable.
  • If the landlord does not do the outgoing inspection within 3 days of the expiration of the lease, it is deemed the property was handed back in good order and the landlord will have no further claim for damages.
    • However, if the landlord attempts to make arrangements for the outgoing inspection and the tenant fails to respond, the landlord can access the property within 7 days of the expiration of the lease to assess for any damages and apply the costs of repair against any deposit.

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7. When must the deposit be refunded?

 

  • If during the outgoing inspection, it is established that there are no damages, the deposit must be returned within 7 days of the expiry of the lease.
  • If during the outgoing inspection, damages are noted, the balance of the deposit must be returned within 14 days of restoration of the property.
  • If the tenant fails to attend the outgoing inspection, the balance of the deposit must be returned within 21 days of the expiration of the lease.
  • The tenant is entitled to all receipts for the cost of repairing any damages.
  • The landlord can apply the deposit to any amount due by the tenant – outstanding rent or utilities, reasonable payment for damages to the property (for example: cleaning of carpets, lost keys or remotes and returning the state of the property back to its original state at the beginning of the lease), fair wear and rear excluded

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8. Do tenants have a 7 days grace period to pay the rent?

 

  • There is no law which provides a tenant a seven day grace period to pay their rent.
  • A landlord is entitled to be paid by the tenant in the proper amount, and at the proper place and time.
  • The lease agreement will note the rent date due and most lease agreements will specify that the rent is due and payable in full, free from deductions.
  • If the lease agreement stipulates that the rent needed to be paid on or before the first of each and every month, then the tenant would be in breach of contract if the rent was still outstanding on the second of the month.

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9. Can a lease be cancelled early or if the property is sold?

 

  • In the first instance refer to the lease agreement, specifically to any cancellation clause.
  • If the lease agreement is for a fixed period and there is no cancellation clause, the tenant cannot cancel the lease except if the landlord breaches the lease, or agrees to the early cancellation of the lease.
  • If the lease is on a month to month basis then a calendar months notice is required to cancel the lease.
  • If the tenant fails to pay the rent the landlord can take action to demand the rent, cancel the lease or obtain a court order and have the sheriff of the court forcibly evict you, should you fail to heed the eviction order.
  • If the property is sold the tenant is protected by the common law ‘huur gaan voor koop’ If the property is sold, the new owner becomes the landlord and all the terms of the existing lease are enforceable. The owner cannot cancel the lease, but must wait until the end of your existing lease period. The new owner is also responsible to refund your deposit less any claim for damage.

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10. Can a tenant claim for improvements made during the lease?

 

The position differs in the case of immovable and movable property.

Immovable property

Tenant can claim for:

  • Necessary improvements to protect or preserve the property (and labour costs),
  • Structures affected with the consent of the lessor (only bare - not labour costs),
  • Ploughing, tilling and sowing seed on agricultural land (the cost thereof).
  • The claim arises only once the lease is terminated and lessee vacated the property.
  • Lessee has no right of retention over the property until compensated.

Lessee may (in the absence of a contrary agreement) :

  • Break down structures he erected and remove such material,
  • Harvest and remove all crops he planted,

Notes: - Lessee may only perform above actions before expiry of the lease.

- Anything that remains after expiry is for the benefit of the owner.

If the lessee makes any improvements to the property with the owners consent he would be entitled to compensation when the lease expires. The owner may be entitled to the improvements, but is not allowed to receive them without paying compensation, because it would be unjust enrichment. This is a principle of law referred to as unjust enrichment, which holds that no person should profit through causing loss to another.

Movable property

Tenant can claim for:

  • Necessary improvements to protect or preserve the property (costs expended),
  • Useful improvements, with or without the consent of the lessor (lesser of cost or enhancement value).
  • The claim arises only once the lease is terminated and lessee returned the property.
  • The court has discretion to disallow a claim for useful improvements.
  • Lessee has a right of retention over the property until compensated.

Lessee may remove useful improvements without placing property in worse condition than it  was prior to when the improvements were made, instead of compensation.

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11. My lease has come to an end. The owner now wants to use my rental deposit for maintenance and repairs that go beyond what is called ‘fair wear an tear’ from reasonable use of property. What are my rights?

 

'Fair wear and tear' is defined as 'deterioration or depreciation in the value of the property by ordinary or reasonable use'.

The rule of thumb is that if a tenant has damaged something that does not normally wear out , or has substantially shortened the life of something that does wear out, the tenant may be charged the prorated cost of the item, taking into account how old the item was and how long it may have lasted otherwise, and the cost of replacement.

So while ordinary wear to carpets should not count against the tenant, large rips or indelible stains would. Any deduction for their replacement should take into account their age compared with the expected time of use.

A landlord may also deduct cleaning costs from the deposit but may only charge for cleaning that is necessary to satisfy the 'average' or 'reasonable' tenant. The landlord must look at how well the tenant cleaned the rental unit on departure, and may charge cleaning costs only if the unit, or portion of it, was left in a clearly substandard condition.

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12. What happens to my deposit if I have signed a lease but have now received a transfer and cannot move in?

 

Where a tenant signs a lease and has agreed to move in, but pulls out at the last minute, the law says it is reasonable to use the deposit, or a portion of it, to cover the lost rental.

If the landlord has taken the deposit but has shown no sign of securing a new tenant, the tenant who has paid the deposit can approach the Rental Housing Tribunal to show that no effort was made.

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13. What must I do if my tenant has not paid the rent?

 

If rent is not paid on the agreed date, the lessee will have breached the terms of the lease.

The lessor may:

  • Afford the lessee an opportunity to pay the arrears
  • Alternatively, immediately issue a letter of demand to the lessee awarding the lessee a reasonable period (normally seven days) to remedy the breach. The time period is usually set out in the lease agreement. The lessor will keep a copy for his or her record purposes,
  • Once the time period expires and the rental has not been forthcoming, issue out a summons for payment of the arrear rental and simultaneously cause the movable assets held on the premises to be attached in accordance with the Landlords hypothec to secure the rental;
  • Should the lessor wish to terminate the lease agreement, send the Lessee a letter of cancellation which can also be set out as a prayer in the summons and proceed with eviction proceedings;
  • If the Landlord fears that the tenant may vacate the premises without paying the rental and remove the movables then the Landlord may bring an urgent application to court in terms of section 32 of the Magistrates Court Act authorising the removal of the movable assets to a place of safety, usually the sheriff’s premises.
  • The Landlord may also in due course issue out summons against the tenant for damages that the landlord may have suffered; being damage to the property not covered by the deposit as well as loss of rental income for the period that it takes to find a new tenant.

It would be beneficial to consider involving your attorney at law to assist you in regard to any or all of the above procedures mentioned, to ensure expedient and satisfactory relief in the appropriate forum.

It is also important to note that there is a view which has not as yet been decided that residential lease agreements may fall within the scope of the Consumer Protection Act in which case 20 days notice will be have to be given for breach of contract. That is why it is important to consult an attorney.

The local Housing Rental Tribunal is one of the statutory bodies that have authority regarding lease disputes.

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14. What sort of complaints are adjudicated by the rental housing tribunal?

  • Non-payment of rent
  • Failure to repay a deposit
  • Invasion of a tenant's privacy
  • Overcrowding of a premises
  • Determination of fair rental charge
  • Illegal seizure of a tenant's property
  • Discrimination against a prospective tenant
  • Non-Issue of a receipt for rent
  • Unacceptable behaviour by a tenant
  • Lack of maintenance and repairs
  • Illegal eviction
  • Illegally refuse a tenant access to the property or interrupt services
  • Unacceptable living conditions

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15. What are the functions of the housing rental tribunal?

 

The HRT is a statutory body, and can be approached by both the owner and the tenant.

There is an office situated in each province and the tribunals have the power to make rulings that are the same as rulings made by the Magistrate Court. Their service is free and the Tribunal has wide powers:

  • Spoliation orders - this prevents a tenant or landlord for taking the law into their own hands by seizing goods. A spoliation order returns the goods to the owner while waiting for a full hearing on the matter. Spoliation orders would generally be sought by the tenant against the landlord.
  • Interdictions- these are orders which prevent a landlord or tenant continuing with a certain action or require the other party to undertake a particular action. Interdictions however are likely to be sought by either a landlord or tenant in various situations where one party is alleging that the other is committing an unfair practise.
  • Attachment orders - a landlord would usually try to get an attachment order for the tenant’s property once the Tribunal has determined that back rent owing to the landlord has not been paid and following an interdiction against the tenant.

Here is a contact listing for the HRT:

Western Cape

website

(021) 483 2342 or 0860 106 166

Johannesburg

website

(011) 630 5035

Pretoria

website

(012) 358 4403

Kwazulu Natal

website

(031) 336 5300 or (031) 336 5222

North West

website

(018) 387 6057

Limpopo

website

(015) 294 2000 or (015) 294 2241

Mpumalanga

no website

(013) 766 6200

Northern Cape

no website

(053) 830 9444

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16. When is a tenant in illegal occupation?

 

If the contract was breached by the tenant in any way, and he or she has not remedied such a breach within the grace period as agreed to by the parties, if any, the landlord may terminate the contract, i.e. failure to pay rent as agreed.

The landlord must notify the tenant in writing of his decision to terminate the contract by means of letter of cancelation, allowing the tenant a reasonable period, or such timeframe as agreed upon in the terms of such a lease, to vacate the property.

If the tenant ignore the decision of the landlord to terminate the agreement by remaining on the property and continues to use and enjoy the fruit thereof, the tenant may be regarded as an illegal occupier of the property.

The same applies if the tenant continues to occupy the property after expiry of the lease.

The Supreme Court of Appeal has decided that defaulting tenants, in other words, tenants who have not paid their rent must be treated in exactly the same way as illegal occupiers.

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17. What is the law on evictions from rented property?

 

The Rental Housing Tribunal does not have the authority to hear eviction cases.

A landlord therefore cannot begin an eviction at the Tribunal. This can only be done at a Magistrate or High Court and for that you will require the services of an attorney.

There is also no longer a common law right to evict someone from his or her property.

The owner or landlord must follow the procedures of the Prevention of Illegal Eviction and Unlawful Occupation of Land Act 19 van 1998 (PIE), except in areas where ESTA operates, if they want to evict a tenant.

Tenants are entitled to the same type of procedural protection before eviction. He or she must be notified of pending action by means of a notice of intention to evict as well as at least 14 days notice for the court hearing.

This notice must also be send to the Municipality.

The court will assess whether the person is an unlawful occupier and whether the owner has reasonable grounds for eviction. In its decision the Courts will consider if there is alternative accommodation available.

Evicting a tenant without a court order is now a criminal offence, known as a 'constructive eviction' - for instance by cutting of the water or electricity supply without a court order.

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18. What are some of the defences a tenant can have when faced with an eviction order?

 

Agreement not properly cancelled - If the landlord or owner did not cancel the agreement the tenant can not be evicted.

Habitatio - An agreement about the rental amount for a property is essential for a lease contract. When occupants are evicted the occupant may be a relative or a friend. Without a rental agreement such a person is not a tenant. A person could have the right to occupy without paying any rental - the right of free residence on the property of someone else, called, habitatio. In Jordan v Lowery [2011] JOL 27295 (ECP) the court had to decide whether the respondent was a non-paying tenant or living in the property by habitatio. Respondent, as a condition of sale, had the right to live there until her death or until time she vacates the premises. She later agreed to abide by all the terms relating to a tenant. She defaulted in her payments. The court ruled that the right to habitatio was not registered against the deed of sale and that respondent was a tenant. She was ordered to vacate the property.

Huur gaat voor koop – when the owner of immovable property transfers the land to a third party, the tenant can not be evicted - the rule is that the law regards the lease to be stronger than a sale of land; the new owner will step into the shoes of predecessor.

Statutory defences - The Lessee can argue in terms of section 4(2) of the PIE Act that due to the fact that there are minor children, elderly people, a woman is the head of the household or disabled persons are living in the house that they need more time to vacate the premises. If the tenants have been in the premises for more than 6 months then this will assist them in gaining more time to find alternative accommodation.

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19. Who has legal standing to bring an order of eviction?

 

The following persons have locus standi (legal standing):

  • The owner of the land – or the executor or curator bonis of the owner,
  • The person in charge of the land, i.e. person who has, or at the time had, legalauthority to give permission to enter or to reside upon the land in question which may be:
    • a lessee,
    • a person acting as agent for the owner.
  • (If any of the above is the applicant, the owner should be joined to ensure that legal standing is not in question).
  • An organ of the State.

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20. What is a section 4(2) notice and what are the equity provisions referred to in section 4(6)?

 

The purpose of a 4(2) Notice is:

  • To give the respondents notice of the eviction proceedings against them,
  • Notice of the date of proceedings whereby the court will hear the matter,
  • The grounds on which the eviction is sought, and
  • To inform the respondents of their right to appear before the court and defend the action.
  • To inform the Respondents of their right to apply for legal aid.

Section 4(6) provides for more leniency to:

  • Elderly people,
  • Children
  • Disabled persons, and
  • Woman – headed households.

The Magistrate will grant an eviction order if it is just and equitable to do so taking into account the rights and needs of the above people.

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21. What type of legal action will my lawyer bring, and in which court will my lawyer seek an eviction order?

 

The type of action or application brought by an Attorney and the forum in which it will be pursued shall depend on the circumstances of the particular matter.

Eviction matters can be heard in the High Court and in a Magistrates Court with jurisdiction. Jurisdiction will depend on the value of the occupation and not the value of the property itself. A lease agreement may also have a clause consenting to the jurisdiction of a specific court.

In cases where a factual dispute can be foreseen, an Action procedure should be followed. An action procedure requires the issuing of a Summons, requiring the unlawful occupier to respond within ten days regarding his intention to defend the action. If undefended adefault judgement may be awarded. A defended action may take much longer to finalize.

Application procedures may be finalized quicker and is initiated by means of Notice of Motion (founding affidavit).

An Ex Parte application is applicable in both Action and Motion proceedings, at the close of pleadings or before service of the main action of the application, to authorise the Notice in terms of section 4(2) of PIE. The unlawful occupier and the Municipality must receive notice of proceedings at least 14 days prior to the date thereof(Section 4(2) of PIE).

A claim for Damages and Eviction must be separated.

Actions for Commercial Evictions - can also be pursued in a Magistrates court with jurisdiction or in the High court. The normal Court Rules apply – no other requirements are imposed.

Evictions in terms of ESTA - only applicable to non-urban land or land in an urban area that is used for agricultural purposes - applies to occupiers with tacit or express consent or another right in law to occupy the land in question. The land must not form part of a township and the occupier must earn less than R 5000 per month – if all three criteria are present, ESTA will apply.

Evictions in terms of PIE - apply specifically to unlawful occupiers with no consent and no right to occupation and apply to any land and in all cases where ESTA does not apply.

If the action or application is successful a Warrant of Ejectment may be issued.

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22. What if someone is trespassing on my land?

 

Trespassers are people who go onto someone else's land, without the permission of the owner or the lawful occupier. The Trespass Act gives the police the right to arrest a trespasser. If the court finds you guilty you can get a fine or a jail sentence. In this way the owner can get you arrested if you are on his or her land illegally.

An owner cannot use the Trespass Act as a way of getting people evicted from their homes -this must go through the PIE Act.

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