John and Rachel were ecstatic when the bond on the R6m home they wanted to buy was approved. They’d been looking forward to this moment for years and had made huge sacrifices in order to save enough money for the deposit and other related expenses. Transfer went through and the happy couple was due to move in on 1 June this year. However, on the day of the move it came to light that the previous owner (who had already received the funds from the sale) refused to move out.
“The move from Johannesburg to Cape Town was stressful and all Rachel and I wanted to do was unpack and put the kettle on. We’d arranged to meet the agent at the home in order to get the keys, but it soon became apparent that there was a problem. The previous owner wouldn’t come to the gate and wouldn’t answer his phone. Our first thought was that something had happened to the guy and, at one stage, we even thought about calling the police. He then contacted the agent and informed him that it wasn’t convenient for him to move out on that day. We initially thought he was joking – after all this was a high-end property and we assumed we were dealing with a high-end individual. However as the hours passed and after much toing and froing, it became very clear that we were faced with a major problem. We had nowhere to go, basically because we had spent all our savings on the purchase and the move. Even worse, I’d convinced my elderly mother to move in, so there were three of us who were, to all intents and purposes, homeless.
“Things went downhill rapidly and the seller, who had been extremely pleasant before the sale went through, started threatening my family. He hinted that he had connections in the underworld and bragged about being a martial arts specialist. He also told us that he was evoking squatters’ rights and wouldn’t be moving out until ordered to do so by a court.
“To add to our woes, it was clear that the property wasn’t being looked after. His dogs had all but destroyed the garden, the pool had turned pea green and while we obviously couldn’t see what was happening inside the home, we did notice that various items that had been included in the sale (including two expensive water features) had been removed.
“We’d heard all sorts of horror stories regarding evictions and how the courts favoured a tenant’s rights over those of a landlord. We fully expected this to be a lengthy, drawn out process, something my wife and I were dreading. We were therefore pleasantly surprised when our attorney suggested moving an urgent eviction order. There was a lot of paperwork to be drawn up, but once all the requirements were met, the process went quickly and smoothly and thankfully the judge signed the eviction order. Interestingly, the previous owner gave us no problems whatsoever once he’d been ordered to vacate the property, and moved out virtually immediately. We were right to have been concerned regarding the state of the interior. Bathroom mirrors had been purposely broken, a couple of the kitchen cabinets had been defaced and the satellite dish was broken, but to us, these were minor issues and we were thrilled to finally be in possession of the home we own.”
Urgent Evictions explained
“In order to succeed in an urgent eviction there are a number of requirements that need to be satisfied,” says Mark Millner, head of the commercial and litigation department at Alan Levy Attorneys.
“Most importantly one needs to show a court that there is and will be substantial injury to persons (this can include the unlawful occupiers themselves) or damage to property if the order is not granted. This could include (but is not limited to) instances where the unlawful occupiers are and will commission crimes to people around the property and the property itself; where the property has been hijacked and the lawful occupants are rendered homeless as a result; where there is a problem in the property that is rendering it unsafe to the occupiers; or even where a seller refuses to vacate the property and transfer and occupation was due to pass and the buyer is now homeless as a result.
What’s the difference between a normal and an urgent eviction?
A ‘normal eviction’ is an eviction that follows the normal time frames of whichever court is being utilised. All the person applying for the eviction needs to show is that they are the lawful owner and that the person/people in the property do not have a legal right to be in the property. It will be dealt with in terms of Section 4 of the Prevention of Illegal Eviction and Unlawful Occupation of Land Act 19 of 1998 (“Pie Act”).
In an ‘urgent eviction’ the person applying for the eviction has to prove that the matter is one of urgency and that either substantial damage to the property or serious injury to person will be suffered if the eviction order is not granted, in addition to all the requirements for an ordinary eviction. This is in terms of Section 5 and Section 4 of the Pie Act.
Generally speaking, how long does it take for an urgent eviction case to be heard?
That depends on the presiding officer, but an order can be given for the unlawful occupier to vacate in as little as 24 hours.
In general how much does it cost and are the costs higher than for a normal eviction?
The nature of an urgent application is one that by definition requires immediate and more focused attention, thus the costs are significantly higher.
What happens if the courts find that the eviction isn’t urgent?
The matter will removed/or struck from the urgent roll for lacking urgency and will have to be heard in the normal course as an ordinary eviction. So the party instituting proceedings will not have to start from the beginning but rather just enrol the matter on the normal opposed or unopposed roll, depending.
Would it be advisable to contact an attorney to handle the case and if so, why?
Eviction applications in terms of Pie are very technical, and if one adds the elements needed to be satisfied for an urgent application in terms of Section 5 as well as the procedural requirements for urgent court, one has a situation that would be difficult for a lay person to successfully navigate.
What documentation will the landlord/owner seeking an urgent eviction have to provide?
That would depend on the attorney, but as a general rule they will request:
- Proof of ownership, if possible
- The lease if it is a rental situation
- Transaction history of what is owed, if relevant
- A detailed history of what has transpired
- If going on the basis of damages or harm to a person, pictures often help tell the story.