Residential evictions are, generally speaking, governed by the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 19 of 1998, (“PIE”) which was enacted to regulate the orderly and constitutionally compliant eviction of unlawful occupiers.
Although PIE has changed the laws that previously governed evictions, it has also introduced certain safeguards and protections for both the property owner and the unlawful occupier.
We have divided a residential eviction into phases to help you better understand how far the eviction is and what is still to be done.
Phase One of a PIE Eviction
In terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (“PIE”), only an unlawful occupier can be evicted from property used for residential purposes (this is different from commercial evictions and farm evictions) and as such the person in occupation of the property must be turned into an unlawful occupier.
Turning a person into an unlawful occupier would usually require that the occupier be “placed on terms”. In the case of a former tenant who has failed to pay rent, we would demand payment of the unpaid rent in formal correspondence and we indicate that should the tenant fail to pay the unpaid rent, the tenant will be evicted.
In addition to the above, we engage the occupant, in writing, to try and make payment or other arrangements and vacate the property. This is done to try and resolve the matter on good terms for everyone involved.
Where the occupier fails to conclude reasonable arrangements, formal correspondence is sent to the occupier indicating that:
- The lease agreement (if any) is terminated.
- The occupier is required by law to leave the property.
- The occupier is an unlawful occupier.
- The occupier will face a forced eviction should the occupier fail to vacate.
Phase Two of a PIE Eviction
Once Phase One is complete, Phase Two of a PIE eviction can commence and this involves:
- Preparing the eviction application papers – this normally contains: a history of the matter that has resulted in an eviction being sought; the facts justifying the eviction; certain documents supporting the eviction; and, addressing certain eviction formalities.
- Executing the eviction application papers.
- Having the Sheriff serve the eviction application papers on the unlawful occupier.
- Complying with the court rules (especially the eviction court rules).
Once the eviction application has been served and the relevant time periods for defence have ended, the eviction can move on to Phase Three.
Phase Three of a PIE Eviction
Phase Three is a vital part of the PIE eviction process and is critical. Phase Three involves approaching the courts with an application to authorise a special notice to be served on the unlawful occupier – we commonly refer to this notice as a section 4(2) notice. This notice can only be approved by the court and contains certain information that must be brought to the attention of the unlawful occupier.
Additionally, the section 4(2) notice informs the unlawful occupier of the date on which the eviction application will be heard by the court and if the unlawful occupier wishes to oppose the eviction, the unlawful occupier must do so urgently.
After the section 4(2) notice has been authorised, we have it served on the unlawful occupier by the Sheriff.
Phase Four of a PIE Eviction
Only after the section 4(2) notice has been served, do we proceed with Phase Four of the eviction. In Phase Four of the eviction, we argue the eviction application in court and obtain an eviction court order.
Depending on the eviction court order and our client’s instructions, we have the eviction court order served on the unlawful occupier by the Sheriff to indicate that the court has authorised the forceful eviction of the unlawful occupier – this affords the unlawful occupier a reasonable time period to vacate or be forcefully evicted.
Phase Five of a PIE Eviction
In Phase Five of an eviction, a warrant of ejectment or writ of ejectment is obtained and delivered to the Sheriff and the Sheriff is instructed to forcefully evict the unlawful occupier.
In some instances, certain eviction companies are used to help the Sheriff in evicting the unlawful occupier. This is usually the case where security is required to evict the unlawful occupier.
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