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Monday Oct 08, 2018

How to get rid of Illegal Tenants

Locked out, services disconnected, unannounced visits or withholding rental deposits: landlords are often given a bad rap. But while there are terrible landlords, there are terrible tenants, too – those who don’t pay on time, damage or fail to maintain property, the malcontents, the bad neighbours, the antisocials.

Arguably, the worst tenant, though, is the one that overstays his welcome once the lease has expired or has been breached. And then stops paying. Which leaves the landlord up the proverbial creek, knowing that they need to incur tens of thousands of rand’s expenses to evict the tenant.

Instead, landlords cut services themselves or lock their tenants out. It’s not legal, nor effective – because squatting with a roof over your head is better than being out on the streets.

The Prevention of Illegal Eviction From and Unlawful Occupation of Land Act (also known as the PIE Act) came into effect in June 1998, which sets out procedures for legal evictions. Landlords cannot evict illegal occupants without first obtaining a court order. But it can be an expensive, protracted process. And finally obtaining that court order doesn’t mean it will – or can – be executed.

Cilna Steyn, of SSLR Specialist Property Lawyers, who acts for landlords, property managers and rental agents in tenant disputes and evictions, says the odds are stacked against landlords because evictions are costly and people who own immovable property don’t qualify for legal aid.

The tenant qualifies, though, so they can get legal aid, not the landlord, she says.
There’s a misconception that a court order is the end of the road for landlords, because even if the correct court procedures for obtaining that order are followed, they could end up having to start the process over again. In the meantime, the illegal occupant stays put while the landlord racks up legal fees and loses income.

She says not all eviction orders are executable because of opposition from occupants and the community, and a lack of support from law enforcement.

We’re a specialist law firm, so our success rate is far higher, but you always have exceptions. Since 2016, we’ve had three cases where we couldn’t execute court orders. Every time, community members have helped the occupants to return.
She says if court orders are unexecutable, attorneys tend to walk away. But you have to be in it for the long haul. I refuse to give up on a landlord that can’t execute an eviction order. Most landlords don’t have the money to go to a specialist law firm, so they go to a small firm that doesn’t understand evictions very well.

It is a very complex field. The reason our firm can do this effectively is because we understand the processes – ultimately, this makes it quicker, less costly and more efficient.

Evictions are further complicated by community sensitivities – the Red Ants are renowned for their heavyhanded, apartheid-era methods, foreign security guards end up worsening tensions, and the sheriff cannot go in alone to remove occupants. The moment you bring in something like that, you have community resistance on a whole different level.

A number of years ago, a sheriff in Joburg got shot, and is now paralysed. They’re not allowed to be armed, so they’re vulnerable.

She says in some areas, such as Orlando in Soweto, the property sector is booming – there’s amazing growth, it’s beautiful. If you’re an investor and you understand the local market, it’s great. Property prices are booming.
But if occupants dig in their heels, things become difficult. Somebody owns a piece of land or house they want to sell, but there are family members who know the value is rocketing, so they want to hold on to the property, which is why we struggle to execute on evictions.

It’s a countrywide problem, though, she says, calling for legislative changes to deal with execution.
The police should have a special task force to deal with evictions. The sheriff can’t be dealing with this alone.
You can’t, on the one hand, protect the landlord’s rights, then not support the landlord to execute evictions and expect them to pay for private security to protect them.

There’s already an unstable feeling about property rights – you have task forces for drugs and everything else. Why not for property, not in a sense of criminal prosecution but in execution of civil orders.

What about misbehaving landlords? Steyn says legal processes must be followed, and going to the Rental Housing Tribunal is not the answer: Its powers weigh the same as a magistrate’s court, but it doesn’t have the power to grant an eviction order.

It’s not the same jurisdiction. It’s fabulous for reclaiming deposits and for rental claims, but that’s about it.
If your services have been cut off or you’ve been locked out, rather go directly to court. It doesn’t have to cost anything. The correct action is to go to court – apply for a spoliation order, which gives you the authority to claim back possessions, even if occupation was illegal. If the deprivation was illegal, the court will immediately order you to be returned to the premises, she says.

You will always be successful if you’ve been deprived illegally (which includes disconnected utilities), and the landlord will have to pay the costs of the legal action. So go to Legal Aid SA or approach a law firm. Many of them will take on such cases – not ours, though.

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