Unlawful Occupiers: Eviction Is Possible, but Neither Quick nor Easy
"It is only once the court concludes that there is no defence to the claim for eviction and that it would be just and equitable to grant an eviction order that it is obliged to grant that order" (Extract from judgment below)
"Buy land" said Mark Twain, "they're not making it anymore." With the first green shoots of a property market recovery supposedly now showing through perhaps this is indeed the time to take his advice.
Just be sure, if the property you have your eye on is occupied by anyone, to seek proper legal advice on the occupiers' legal position before you put pen to paper.
We all know that unlawful property occupiers enjoy substantial constitutional and statutory rights, and a recent High Court case provides a good example of the fact that whilst it is certainly possible to evict unlawful occupiers, it could well be neither quick nor easy.
The family that lived rent free for two years
- A buyer bought an apartment from the previous owner's liquidators and took transfer on 31 March 2017.
- The new owner advised the family occupying the apartment that it must vacate by 14 April or face eviction proceedings.
- The family refused to budge, and the owner, after complying with the many formalities required of it by PIE (the Prevention of Illegal Eviction From and Unlawful Occupation of Land Act), applied to the High Court for an eviction order.
- The family defended the application, firstly on the basis that it was, it said, in lawful occupation in the form of a lease agreement. The Court rejected this defence, finding that the family was in unlawful occupation even on its own version of the facts, because the "lease" (which the owner denied was ever validly entered into) had lapsed at the end of May 2017. The family's attempt to persuade the Court that the lease had been "tacitly" renewed was doomed to failure because of the owner's unrelenting insistence that the family's continued occupation was unlawful.
- Secondly the Court considered the all-important question "Is it just and equitable to evict?"
Per a 2017 Constitutional Court judgment which dealt extensively with the constitutional and statutory rights of unlawful occupiers, the High Court's starting point was this: "that no one may be evicted from their home without an order of court made, after considering all the relevant circumstances", having regard to the interests and circumstances of the occupier/s, and paying "due regard to broader considerations of fairness and other constitutional values, so as to produce a just and equitable result" (emphasis added).
This is where questions of indigence and the risk of homelessness arise, and this is the hurdle at which many a property owner has stumbled in the past.
In this case however, the owner triumphed, the Court finding on the facts that the family was financially able to pay rental but had paid nothing whilst enjoying free occupation for over two years. It had also had legal representation and could not be regarded as economically vulnerable or unable to obtain alternate accommodation.
Critically, perhaps, the Court commented that the father (in whose name the eviction application was brought and fought) "has known of the real risk of eviction for a period in excess of two years and as such, he ought reasonably and responsibly to have made contingent plans in the event that an eviction order is granted ... The professed risk of homelessness is not borne out by the undisputed facts of the matter and [the father] cannot be characterised as indigent by any means".
- Finally, the Court, having decided to grant the eviction order, had to consider when to make the order effective from. It's an important enquiry because as an owner you could find yourself successfully holding an eviction order, but with an expensive delay before being able to implement it. The Court must consider "what justice and equity demand in relation to the date of implementation of that order and it must consider what conditions must be attached to that order.In that second enquiry it must consider the impact of an eviction order on the occupiers and whether they may be rendered homeless thereby or need emergency assistance to relocate elsewhere."
Fortunately for the property owner in this case the Court did not provide for too long a delay, giving the family eight weeks to vacate (slightly longer than requested because a minor child's interests were involved).
The family also has to pick up the tab for all the legal costs.
Buyers - some final advice
First prize is always to have a solid agreement in place with any occupiers before you buy an occupied property.
So sign nothing - not an offer to purchase, nor a lease, nor any form of occupier contract - until you have your lawyer's advice!
firstname.lastname@example.org or 033 341 9100
Author: TMJ Attorneys