South African landlords who fail to distinguish between a tenant and an unlawful occupier risk costly delays, failed court applications and lengthy legal battles, according to Boshoff Attorneys-Notaries and Conveyancers.
The law firm says one of the most common mistakes made by property owners is treating every person who refuses to vacate a property in the same way, despite the law providing clear distinctions between tenants and unlawful occupiers.
According to Boshoff Attorneys, the starting point is determining whether the occupant has lawful consent or a legal right to remain on the property. That distinction determines which legislation applies, what procedures must be followed and how a court will approach an eviction application.
A tenant occupies a property under a lease agreement, whether written, verbal or implied, and is protected by the Rental Housing Act. These protections include access to dispute resolution mechanisms, safeguards against unfair eviction and the right to receive proper notice when a lease is terminated.
An unlawful occupier, by contrast, is someone who remains on a property without the owner’s consent or legal authority. Such cases fall under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE).
Boshoff Attorneys noted that unlawful occupiers are not limited to squatters. Former tenants, relatives or anyone who remains in occupation after their legal right to do so has ended may also be regarded as unlawful occupiers.
The firm highlighted the risk posed by holdover tenants. If a lease expires and a tenant remains on the property without renewing the agreement, they may become an unlawful occupier. However, if the landlord continues accepting rental payments after the lease has expired, a new periodic lease could be created, placing the matter back under the Rental Housing Act.
The legal process for eviction differs depending on the occupant’s status.
Where a tenant is involved, landlords must first lawfully terminate the lease by issuing a valid written notice that outlines the breach and allows sufficient time for the tenant to respond or remedy the situation. In some cases, disputes may be referred to a Rental Housing Tribunal before court proceedings are initiated.
For unlawful occupiers, Boshoff Attorneys said the eviction process is governed strictly by the PIE Act. Property owners must apply to court and ensure that a section 4(2) notice is served at least 14 days before the hearing. The court will then determine whether an eviction would be just and equitable.
In urgent situations, such as when individuals unlawfully move into a property and establish occupation, landlords may seek relief through a section 5 urgent eviction application. However, courts require proof of genuine urgency and exceptional circumstances before granting such orders.
The firm also warned landlords against attempting so-called “DIY evictions”. Actions such as changing locks, removing possessions or disconnecting water and electricity services are unlawful and may amount to spoliation.
Occupants subjected to such actions can apply for a mandament van spolie, a court order restoring possession regardless of whether they had a legal right to occupy the property. Landlords may also face civil liability.
Boshoff Attorneys cautioned that procedural mistakes can be equally damaging. Incorrect notices, incomplete documentation or failure to comply with legal requirements can result in significant delays and force landlords to restart the process.
To support an eviction application, the firm advised property owners to keep detailed records, including lease agreements, payment histories, notices, communication records and proof of ownership where applicable.
The firm added that courts hearing matters under the PIE Act will also consider factors such as the presence of children, vulnerable individuals and the availability of alternative accommodation before granting an eviction order.
Boshoff Attorneys urged landlords to seek legal advice early and to correctly identify the legal status of an occupier before taking any action.
“Understanding the difference between a tenant and an unlawful occupier is not a technical detail. It is the foundation of a successful eviction,” the firm said.
