In South African residential property transactions, it is standard practice for sale agreements to contain a clause relating to the occupation of a property, which clause stipulates the date of occupation and the monthly amount payable as occupational rent or interest by the purchaser.

It is very important to note that occupation by the purchaser of the property prior to registration is NOT A RIGHT that the purchaser can insist on. Rather, it is a contractual concession granted by the seller in exchange for compensation.

Persons in favour of granting occupation prior to registration present the following reasons in support of early occupation:

• The occupation date is fixed, allowing both the seller and purchaser to plan accordingly – i.e. the seller has a specific date on which to vacate the premises and the purchaser to take occupation (move into the property);
• The purchaser will have the opportunity to become familiar with the actual condition of the property;
• Any unforeseen delays in the transfer process will not affect the occupation date;
• Transfer costs and the purchase price will be secured prior to occupation being given;
• The seller will receive occupational rental as income pending registration, instead of leaving the property vacant and vulnerable to vandalism or theft.

In addition to the above, sale agreements generally include clauses that protect the seller’s rights in the event that occupation is terminated for whatever reason. Examples of such clauses are:

• Vacant occupation must be returned to the seller;
• No tenancy is created by granting occupation; and
• Occupation does not constitute a lease agreement in terms of the Rental Housing Act (Act 50 of 1999).

What is the legal position when the sale agreement is terminated and the purchaser (now the occupant) refuses to vacate the property and in doing so, becomes an unlawful occupier?

Even if the sale agreement includes protective clauses, and mediation or arbitration efforts have been exhausted, the seller must ultimately approach the Court for an eviction order in terms of the Prevention of Illegal Eviction from an Unlawful Occupation of Land Act (Act 19 of 1998) commonly known as the “ PIE Act ”.

The “ PIE Act ” sets out specific requirements that must be met before an eviction order can be granted.

Eviction in terms of the “ PIE Act ”, is a lengthy, complex and expensive legal process that involves several stages:

• Issuing a demand or notice to vacate;
• Filing a court application for eviction;
• Attending Court hearings;
• Execution of the eviction order by the Sheriff after a court appointed eviction date.

Evictions must follow proper legal procedures which can take 9 months or longer.

The courts are obliged to consider all relevant circumstances and are required to give special consideration to vulnerable groups such as people with disabilities, children, female-headed households and the elderly, ensuring that evictions are carried out in a just and equitable manner.

It is an offence in terms of the “ PIE Act ”, to evict an unlawful occupier from your property other than through a court order.

Be mindful that the above legal process does not guarantee an eviction order will be granted by the court.

In Conclusion:

Despite the potential benefits and protective clauses in the sale agreement, the “ PIE Act ”,  remains the only legal mechanism for evicting an unlawful occupier. Sellers should exercise extreme caution when considering granting early occupation to a prospective purchaser.

Therefore, sellers should not allow early occupation unless the purchaser:

• has signed all transfer documents;
• paid all conveyancing costs;
• paid the full purchase into the conveyancers trust account and/or acceptable guarantees have been received.

If in any doubt, consult an attorney who specializes in property law and conveyancing.

By Barend De Villiers (Conveyancer) | Conveyancing Department