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Refusal to vacate property

Refusal to vacate

 

What can an owner of a property do in a situation where his or her tenant refuses to vacate the property?

 

Unfortunately, and like most things regarding the law, there is no clear cut answer and every case is always unique. However, we will try to simplify and explain the general requirements and procedure, just to give one some general understanding of the procedure.

 

 

 

 

Only the court can authorize an eviction and the procedure prescribed by the Prevention of Illegal Evictions Act (PIE) has to be followed in order to obtain an eviction order. Since the court procedure and requirements could become very technical, owners are well advised to seek legal advice from a reputable attorney and advocate operating in this specific field of law. To summarize the procedure briefly, an eviction matter might entail the following:

 

  • Most of the time an application is instituted to have a person evicted, however in cases where a  dispute of fact is foreseen action procedure should be instituted which will even take longer. This will be for example, where the tenant claims he or she has a land claim.
  • The eviction procedure is of a dual procedural nature. A main application (or summons) is compiled in which all the grounds and facts of the matter are set out, in the form of an affidavit by the owner of the property.
  • At the same time the PIE Act requires that an ex parte application must be lodged in terms of which the court authorize the Applicant to proceed with the eviction application and certain requirements are set, as to service of the application and notices and future date of hearing of the matter. Both applications need to be served by the Sheriff on the Occupier as well as the Local Municipality.
  • After the service of the applications on the Occupier, he or she might elect to oppose the matter. If this is the case, the matter will take significantly longer to finalize due to the court roll and the allocation  and hearing of court of opposed matters.

 

However and very often, Occupiers without any legal right or entitlement to occupy a property do not oppose matters and the court will normally grant an eviction order if all the legal and procedural requirements are met. When the court grants an order of eviction, it has a discretion as to the time period as to when the property should be vacated. Normally it might be 30 days (which is court days) from date of service of the court order on the Illegal Occupier, but might differ depending on circumstances of each case.

 

It is therefore good to keep in mind that there is a prescribed procedure to follow, as determined by the PIE Act, and an eviction application often take some months, before a final order of eviction is granted.

 

Therefore should there be a tenant in a property  an Agent is marketing, who refuses  to vacate, it  is advisable to inform a Seller to start the eviction procedure timeously to avoid delays in transfer.