Wednesday, August 25, 2010

It's Cool by the Pool, right? [COLUMN]

Do squatters have rights? - by Nick van der Leek

It looks like an open and shut case.  One person owns a property or is paying rent, do they have the right to kick out any other occupant who is not paying rent, willy nilly?  Of course they do, you're inclined to answer, an occupant or guest certainly can't insist on overstaying their welcome.  Can they?

Conversely, if you're the victim, living in a space without a lease agreement, does a lessor or landlord have the right to throw you out when it suits them?
What does the law say?

Before a Court can grant an eviction, it has to consider all the relevant circumstances and be in a position to rule that such an eviction is just and equitable. The owner approaches the Court on the basis of ownership alone and the unlawful occupation. It is then the occupier who may rely on special circumstances and it is their duty to raise and present the special circumstances to the Court. The Court gives special regard to the rights of elderly, children, disabled persons and households headed by women. The Court may only grant the eviction after considering all the relevant circumstances and has a very wide discretion in ordering the date on which the unlawful occupier is to vacate.

And consider the permutations: a single mother living with her son or daughter [neither of whom are paying for rent or expenses].  A married couple where one spouse pays rent and the other is perhaps housebound.  Or a boyfriend and girlfriend, where one has moved in with the other. Or what about a very informal situation: a rent payer invites someone to stay, essentially, as a guest.  Does the rent payer then have the right to kick out the occupant at a moment's notice?

Well as it turns out, the 'guest' has a number of inalienable rights, which could also be called 'squatter's rights'. Squatters cannot be legally evicted from a premises without a court possession order, unless they leave voluntarily or the owner secures peacable re-entry.

Given the trouble, stress, delay and expense of the legal process it is well worth having a jolly good try to peaceably pursuade the squatters to leave, or, if you get the opportunity, to peaceably re-enter and take over, bearing in mind you have a duty of care for any of the squatters' possessions.

Remember though, never use force or threats of violence: this could result in you getting yourself a criminal record, so its a good idea to have a witness with you at all times in case you are accused of this - otherwise it is very difficult to disprove such an accusation.

It may even be worthwhile to invest some money by offering to pay for temporary accommodation and removals, if you can establish some sort of rapport, and pursuade them to go quickly.

In some states in America there are so-called 'toothbrush laws', meaning that if a toothbrush is present, the 'guest' is considered to be a long term tenant. There are other signals that long term accomodation is underway.  For example, if arrangements are made in terms of providing the 'guest' with a set of keys and remote for gate access, or for the storage of equipment, if regular payments are made in lieu of household insurance at the relevant address, or electricity, if furniture and the occupants personal arrangements are altered in order to facilitate the accomodation of the 'guest' - all these are essentially evidence of mutual lifestyle choices by the occupants that imply a longer term domicile rather than, say, a short stay.

Here's more:

Guests: Tenants are allowed to have guests in their apartment without the landlord’s consent. This includes overnight guests. A guest can stay in an apartment for up to 30 days before a landlord can consider that the person has moved in permanently. If a guest causes a problem on the property a landlord can attempt to restrict that individual from returning to the property.

The purpose of a lease agreement is to make explicit the intention of a party to inhabit an address according to clearly set obligations. But without a lease and without the payment of rent, a long term 'guest' can be assumed to carry almost as many rights as a lessee.  
Even if the 'guest' is obliged by the lessee to only pay, say, for his or her own food, this is an obligation which arises due to the longer term nature of the living arrangement. No one would imagine a casual or overnight visitor to provide their own snacks, with the possible exception of birthday parties and similar events.

If there are, perhaps, magazine subscriptions, tax certificates or any other mail correspondence, especially invoices, related to an enterprise or any other activity sent to the guest in the new address - these are all clear signals of a mutual intent to occupy an address, at least for the near to medium term.  The presence of a vehicle and household insurance at the new address is of course virtually interchangeable with an official lease agreement, particularly if the vehicle is also registered at the new address. 

For starters, if an attempt is made to summarily kick out an occupant and change the locks, police should be summoned immediately.  Eviction can only be enforced in the presence of a Sherif and with the authorisation of the local magistrate. 

On average, an unopposed eviction will cost the landlord in the vicinity of R12 000,00. The PIE Act does not provide for the recovery of these costs from the defaulting tenant/unlawful occupier.

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