Just Legal
private property. The case law has made inroads into
private evictions by extending the application of law
pertinent to squatter evictions. The two aspects have
become enmeshed, making the process of private
evictions more complex.
While there are a number of rights attached to
landlords and occupiers, there are also a number of
requirements that have to be met. Failure to comply
with these requirements can have a severe impact by
setting the case back.
These requirements include giving the occupier
sufficient notice before the hearing, and must
include:
• Notice that proceedings have been instituted
• Date of the hearing
• Grounds for the proceedings
• Advising of the right of appearance
Courts consider the length of occupation in the
case of a private owner. If the illegal occupation has
been for less than six months, an eviction order will
only be granted if it is ‘just and equitable’ and, “after
considering all the relevant circumstances, including
the rights and needs of the elderly, children, disabled
persons and households headed by women.”
If illegal occupation has been ongoing for more
than six months, there is an additional aspect of
“whether land (or alternative accommodation) has
been or can reasonably be made available for the
relocation of the unlawful occupier.” An exception
is “where the land is sold in a sale of execution
pursuant to a mortgage.”
Urgent applications
An urgent application can be instituted where there
is imminent harm “to any person or property if the
unlawful occupier is not forthwith evicted from the
land,” or where “the likely hardship to the owner or
any other affected person exceeds the likely hardship
to the unlawful occupier,” or where no other effective
remedy is available.
Pitfalls
There are numerous pitfalls in any eviction procedure.
For property owners, all the necessary steps have to
be followed otherwise the eviction process is noncompliant and illegal. This not only means that the
eviction fails, but the landlord will have lost the legal
fees, and incurred some of the occupier’s legal costs.
It opens the landlord to the possibility of damages
with no resolution to the problem.
Just Property Magazine
For occupiers, a clear knowledge of their rights is
essential to avoid illegal evictions.
The landlord is legally prohibited from
disconnecting the electricity or water, entering the
premises without permission, changing the locks,
removing the occupier’s possessions, and preventing
the occupier from entering the premises.
Issue 7 2015
41