Residential evictions: the ins and outs


Having people unlawfully occupy your residential property can be enormously stressful.

You’ve heard the nightmare stories – how hard it is to get rid of a non-paying tenant, that tenants have squatter rights, that an unlawful occupier has more rights then you. Well, let’s separate fact from fiction.

What PIE stipulates

In June 1998, the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act – or PIE for short – came into effect.

The purpose of PIE was not to prevent evictions but rather to prevent evictions from happening without a court-issued eviction order and set out a specific procedure for obtaining this order.

For example, PIE specifies that before unlawful occupants may be evicted, they must receive adequate notice and be informed that they can seek legal assistance. It also requires that you obtain authorisation from a court, setting out how the eviction order must be served on the relevant parties. These are all straightforward matters that your attorney will be able to deal with quite simply.

Obtaining an eviction order

To obtain an eviction order, you need to ensure that all relevant facts are set out in an affidavit.

No two eviction applications will contain the same set of facts. However, in general an affidavit will have to include the following:

1.            Details of the parties involved

Give your full details and as full a description as possible of the respondents (those unlawfully occupying your property), including information such as gender, age, place of employment and residential address.

It is also important to cite unknown occupants as parties. This is because a tenant may invite people onto the premises without your knowledge, or additional people may move onto the premises only after you have launched your eviction application. Without this general description of “unknown occupant”, you could land up with an order against three named parties – only to find that there are several other occupants that a sheriff can’t evict because they are not named in the eviction order.

Your local municipality should generally also be cited as a party because it has a right to be involved in the application. However, it’s unlikely to participate in an ordinary residential eviction.

2.            Nature of the application

It’s possible to bring an eviction application under PIE on an urgent basis or in the ordinary course. You have to specify the provisions of the PIE Act under which the application is being brought.

3.            Your right to bring the application (locus standi)

It is not always obvious that an applicant has a right to bring an eviction application. Sometimes the owner of a property is not the landlord, or there’s more than one owner. Whatever the case, you will have to explain to the court why you have the right to bring the application.

4.            Background/why is the occupation unlawful

One of the biggest mistakes made in an eviction application is assuming that because tenants have not paid rent, they are unlawful occupants. Occupation is only unlawful once the right to occupy premises is properly terminated and occupation of the premises continues without either tacit or express permission.

Where a lease is in place, the lease must be cancelled, properly and in strict accordance with the terms of the lease. You will need to follow the breach and cancellation clause to the letter and serve notice at the tenant’s chosen address.

Another mistake often made is giving notice to remedy a breach (to make payment of arrears), advising the tenant that failing such payment, the lease will be cancelled. This amounts to a notice of an intention to cancel without actually cancelling.

Your attorney should know exactly how to cancel a lease properly. Only once a lease is properly cancelled will you have the right to bring the eviction application.

5.            The applicant’s circumstances

It is important to explain to the court how you are being prejudiced by the unlawful occupation.  This could be because of lost rental, a bond on the property that needs to be paid from rental fees, large water bills, damage to the premises or other factors. For example, perhaps the local municipality has threatened legal action against you because of unlawful activity by the occupants at the premises.

6.            The circumstances of the occupants

The court is obliged to make an order that is just and equitable, having regard to all the circumstances – including those of unlawful occupants.

Once a court is satisfied that occupation of premises is unlawful and that the application has been brought properly, it will determine what length of time must be given to the occupants to vacate the premises. When doing this, the court is likely to consider the occupants’ circumstances.

The court must consider if there are any vulnerable persons, such as persons who are disabled, young or elderly, occupying the premises. It must also consider whether the occupants could find alternative accommodation.  In this regard, occupants’ earnings would be relevant.

Minimising the risk of a bad tenant

To minimise the potential harm caused by a bad tenant, consider the following:

  • The longer you take to cancel the lease of a defaulting tenant and to bring an eviction application, the greater the loss you are likely to suffer.
  • A weak lease agreement will make an eviction application harder.
    Make sure that a lease includes a clear cancellation clause that’s easy to act on, a clause explaining that any failure to act on your rights would not amount to a waiver of those rights and a clause limiting the number of occupants. The lease should also oblige the tenant to make payment without deduction, exchange or set-offs, and waive any right of retention by the tenant for any improvements made to the premises.
    In addition, you should use a detailed tenant application form, in which prospective tenants set out their employment details, income and monthly expenses.
  • If you want to evict your tenant, cancel the lease properly.

The best advice is to have a well-drafted lease, take action without delay and do so properly, with assistance from a suitably qualified attorney. An eviction under PIE is a fairly straightforward exercise for an attorney who has experience with such matters.