Evicting tenant who won’t vacate

An anxious reader tells the Property Poser experts that she concluded a rental agreement with a tenant, which specifically stated that one month’s notice would be given to vacate the premises should the property be sold.

The lease agreement was on a month-to-month basis. Earlier this year it appears that the property was, in fact, sold and around this time the tenant gave notice to both owner and agent that she would vacate the property.

Grant Berndt - Abdo  Abdo Attorneys

Grant Berndt – Abdo Abdo Attorneys

Shortly thereafter, she reneged on the notice to vacate and refused to move out, citing the PIE Act in her defence. The reader would like to know what her remedies are.

Grant Berndt from Abdo and Abdo Attorneys in East London says it appears that the agreement has been properly terminated in view of the fact that the tenant gave notice, which was accepted by the landlord.

“The tenant is therefore in unlawful occupation of the property.”

In terms of the provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, or so-called PIE Act, no one may be evicted from a property without a court order, says Berndt.

“A landlord wishing to evict an unlawful occupier has to institute action to initiate the procedure to evict.”

Berndt says a notice authorised by a magistrate must be served on the unlawful occupier as well as the municipality at least 14 working days before the hearing on the eviction.

“This notice obviously allows the lessee to oppose the action. At a hearing of the matter, the court will determine whether the landlord is entitled to evict the tenant.”

The PIE Act contains reference to issues to be considered by the court, says Berndt. “These include the rights and needs of children, the elderly and households headed by women.”

If the court finds that the owner is entitled to an eviction order, it will also assign a date upon which the unlawful occupier must vacate the premises, says Berndt.

Brian Kinnear - Fresh Lifestyle Properties

Brian Kinnear – Fresh Lifestyle Properties

The owner may call in the assistance of the sheriff to remove the occupiers, should they still not vacate the premises on the due date, says Brian Kinnear, principal of Fresh Lifestyle Properties in East London.

Kinnear says this unfortunately does not provide much solace for the reader at this point.

“It appears that transfer has taken place and, typically, the agreement of sale would make provision for the seller to give the purchaser vacant occupation.”

It is, however, possible that the property was sold subject to any applicable lease remaining intact, says Kinnear.

“In such an instance, the new owner then replaces the seller as the landlord and is entitled to rental on the premises.”

Similarly, says Kinnear, any issues relating to the eviction of a tenant would then be for the new owner to resolve.

“However, it is critical that the purchaser not be unwittingly burdened with the problem tenant and the situation should be disclosed prior to passing transfer.”

Kinnear says the buyer must be aware of the facts and still be prepared to accept transfer or the process should be stopped.

“Our reader should carefully peruse the agreement of sale to determine whether it addresses the issue of occupation and/or existing tenants.”

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