Our reader, who has allowed his daughter and her two children to move into a wendy house on his property, wants to know whether a formal process must be followed to have them evicted.
The arrangement came about after the daughter was separated from her husband.
He says there is no formal lease in place and the daughter contributes a nominal amount to the utilities payable in respect of the property.
As a result of the verbal abuse by the daughter to her father, there is some urgency to have her vacate the property.
See the reader’s question here.
The problem is, however, that the daughter now refuses to leave.
The fact that the parties are related does not alter the requirements for the eviction of an unlawful occupier from the property.
The legislation applicable to eviction is the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998.
Under the act, evict means to deprive a person occupation of a building or structure, or the land on which such building or structure is erected, while eviction has a corresponding meaning.
An unlawful occupier means a person who occupies land without the express or tacit consent of the owner, or without any other right in law to occupy such land.
The reader says his daughter has been given a date by which she must vacate the property but it would appear that no formal notice of the requirement for her to leave has been given.
Notwithstanding the fact that no formal written agreement of lease has been concluded between the parties, an agreement of lease still exists, albeit one that was done orally.
There is no indication as to any further terms agreed upon between the parties or whether the daughter is breaching any of the conditions.
But, as a result of the complaint of the nominal contribution towards the costs of the property, it would seem that the agreement was for the daughter to contribute a higher amount.
If this is the case, the father could place his daughter on terms, in writing, confirming that she is in default due to her failure to abide by the agreed terms.
Cancellation and eviction could then be sought on the basis of the default. However, the lack of a written lease may make it difficult to prove the agreed terms between the parties.
The notice does not necessarily only have to be based on a breach.
It could also be based on a notice of termination, cancelling a month-to-month lease agreement between the parties.
As the verbal abuse towards her father is a concern, it should be noted that, under the act, the owner may institute urgent proceedings for the eviction of an unlawful occupier pending the outcome of proceedings for a final order.
The court may grant such an order if it is satisfied that there is a real and imminent danger of injury or damage to any person or property if the unlawful occupier is not forthwith evicted.
Due to the concern in respect of the verbal abuse, the remedies of the Prevention from Harassment Act 17 of 2011 should also be considered.
Under this legislation, harassment means directly or indirectly engaging in conduct that the respondent knows will cause harm or inspires the reasonable belief that harm may be caused to the complainant.
Harm, under this legislation, means causing any mental, psychological, physical or economic harm.
The father could apply for an interim protection order against the harassment by his daughter upon him satisfying the court that there is prima facie evidence on three counts.
Firstly, that the respondent is engaging or has engaged in harassment and, secondly, that harm is being or may be suffered by the complainant as a result of that conduct if a protection order is not issued immediately.
Thirdly, the protection to be accorded by the interim protection order is likely not to be achieved if prior notice of the application is given to the respondent.
Despite the inconvenient circumstances, where the daughter is on the same property as her father, the protection order may provide him with some comfort should she abuse him verbally, or in any other manner, in future.
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