Real Estate Investor Magazine South Africa September/ October 2019 | Page 8

Direct your property investment question to [email protected] or go to our FaceBook page or participate in our regular FaceBook LIVE interviews to ask your questions Tenant illegal eviction Q I was letting at Encore complex via an agent to the owner. I am self-employed individual and money was not coming like before, I missed my 2 months’ rent and the owner kicked me and my younger sister out like dogs.”Like dogs” I mean like there was no formal procedure that was conducted just like when we were moving in. We didn’t get a formal eviction either from him or court. We were advised by the agent that the owner doesn’t want us there. So for a matter like this, what should I do because we are homeless at this moment ? A L erato I’m really sorry to hear about your unfortu- nate situation. From your question it does appear as if you were in breach of the agreement by not paying the rent as it became due and owing. Howev- er, even though the landlord might be in a position to cancel the lease agreement due to non-payment of rent; up to the point of cancellation of the agreement you are not in illegal occupation of the property. Even on cancellation when you are in illegal occupation of the property the landlord has to follow due procedure to obtain an eviction order, as set out in the Preven- tion of Illegal Evictions Act. Section 26 of the Constitution is very clear that no person may be evicted without a court ordering to do so after the relevant circumstances has been taken into consideration. These relevant circumstances are set out clearly in the Prevention of Illegal Evictions from and Unlawful Occupation of Land Act and if an eviction is not by way of court order it will always be an illegal eviction. Any illegal eviction or even interference with occupation will amount to spoliation. The Mandament van Spolie is a Dutch Law a principal adopted into our law, that provides that in a case where a person was in possession of a thing, in this particular case occupation of an immovable property and such position is disturbed or the person is deprived of that possession; the person who was deprived of possession is allowed to approach a court with a spoliation application and 6 SEPTEMBER/OCTOBER 2019 SA Real Estate Investor Magazine CILNA STEYN Managing Director of SSLR incorporated demand to be placed back in possession. A Spoliation Application has to be done through a court or the Renting Housing Tribunal. In the majority of Magistrates’ Courts, as well as the Rental Housing Tribunal you do not need legal representation meaning you can simply attend to anyone of these forums to seek relieve. The court or tribunal will order that landlord place you back in possession of the property and that he has to follow due process to obtain an eviction order. The only problem in this case is when it becomes impossible for the landlord to place you back in possession, for instance if another tenant already took occupation of the premises a spoliation order cannot succeed. This is also one of the reasons why it is essential for landlords to follow the correct process by cancelling the lease agreement in terms of law, which would in most cases be a notice period of 20 (twenty) business days’ notice to demand that the tenant remedy the breach of the lease agreement in full, only in a case where a tenant didn’t remedy the breach in full may the lease agreement be cancelled. After this a court has to be approached with an application for eviction. When the landlord follows the correct process and the court grants the eviction order then the order will be executed by the Sheriff of the Court. Only at this point will the landlord be allowed to take occupation of the property.