Illegal Eviction of tenants



The Prevention of Illegal Eviction from an Unlawful Occupation of Land Act is currently the subject of much debate resulting from a recent court decision which ruled that tenants who don't pay rent and buyers who default on their bond payments will have the same protection against eviction as illegal squatters. However, while this ruling is being challenged by the property industry, Tamlyn Reid, a commercial litigation attorney at Durban's Garlicke & Bousfield Inc. draws attention to its probably little-known sister act, the Extension of Security of Tenure Act (ESTA) No. 62 of 1997, which was also introduced in order to regulate the occupation of land and allow the procedure by which owners of land may obtain an eviction order regarding such occupiers. Says Reid: "ESTA is different from its sister act in that it applies when a right of occupation arises as a result of an employment relationship between the occupier and the owner of the land, and terminates only when that employment relationship is terminated through either resignation or lawful dismissal. ESTA applies to all land other than land in a township or encircled by a township (township as defined by the local authorities). "However, it is important to note that ESTA says that if the occupier has resided on the land for 10 years or more and has reached the age of 60 years, or is an employee or former employee of the owner of the land and, as a result of ill-health, injury or disability is unable to continue working for the owner of the land, that person's right of occupation may not be terminated unless they have committed a fundamental breach of the relationship with the owner of the land – which cannot be remedied." Reid says this is an important provision with significant implications for such landowners as it means that if they have people of 60 years plus living on their land who are unable to work and who have resided on the land for 10 years or more, they must be in a position to supply those occupiers with accommodation until their death. She adds: "The spouse and dependants of an occupier who is an employee also obtain a legal right to live on the land as their right of occupation arises from and is dependant on the occupier's right of occupation - and terminates when the occupier's right of occupation ends. Should the occupier die, the right of residence for the other occupiers may be terminated only on 12 calendar months' written notice to leave the land, unless such spouse or dependant has committed a fundamental breach as set out in the Act." Article: 4 October 2002 RodneyHayter The Property Professional On-line Edition 53 email: hayter@icon.co.za