Much has been made of “squatters rights”, often by media sources, to the point that many people (mistakenly) believe that squatter have the legal right to occupy someone else’s property indefinitely.
Let’s start by explaining what a squatter in this context: a squatter is any person (or any organisation) that continues to occupy property when they have no legal right to do so.
Examples of this illegal occupation include: someone who refuses to move out after their lease has ended, someone who has sold the property to another party and refuses to move out even after the transfer of the property has been completed, or someone who has invaded and occupied the land owned by another person, and proceeded to build their home on this occupied property, without the legal owners’ permission.
Although no one may unlawfully occupy property, the catch is that the lawful land or property owner may not remove the squatters without an order of court. This is so that the Constitutional rights of squatters are still protected, namely the right to dignity, the right to equality, the right to a home and the right to property.
Should the property owner decide to take the action of removing the squatters without a valid order of court, it is considered unlawful vigilantism, an unprotected action in terms of our law. The property owner must wait until they have an order of court sanctioning the removal of squatters, without this order the property owner will often be liable for punitive costs (such as the legal fees incurred).
In addition, a landlord trying to remove squatters may not do anything that violates the tenants’ ability to use and enjoy the property they are renting, which means they cannot lock them out, turn off water or electricity supply.
For the land owner to legal remove the squatters or unlawful occupiers, they need to obtain a court order making it lawful to evict the unlawful occupiers. The court has to be satisfied that the eviction will be lawful in terms of our law, and that the eviction will be just and equitable to the unlawful occupier.
The just and equitable aspect is at the discretion of the court, bearing in mind the individual human rights mentioned above, with the courts placing higher value on the individual human rights over business interests.
For more information, contact our tam on 041 501 9800.