Squatter Rights

By Chantelle Gladwin-Wood, Partner and Anja Van Wijk, Senior Associate

Introduction

This article examines what "squatter rights" are in the context of the South African Law of Landlord and Tenant, in relation to both commercial and residential property.

What is a squatter?

A squatter is any person or organisation that continues to occupy a property when they have no legal right do so. This could include a person who whose charter has come up to an cease simply refuses to move out, a person who has sold the belongings to another just even after transfer has gone through, refuses to vacate, or even persons who invade state that is owned by someone else and build their homes on this land without the permission of the owner.

In the commercial context the use of the term 'squatter' is not very common. However, the same principles apply to a business or organisation that is occupying business organisation premises without the permission of the owner, and so for the purposes of this article we will regard business organisations occupying business organisation premises without the permission of the possessor every bit squatters as well.

The myth

Many people remember that squatters have a legal right to occupy a property indefinitely.  This may accept resulted from the hype created by the media around how difficult it can exist to evict squatters.

Happily though, this is a misconception.  Although information technology can in some situations be difficult to adios squatters,

no person or arrangement has any right in terms of our law to occupy property against the permission of the possessor unless this is sanctioned past a court .

However, be they people or businesses, squatters have the right not to be forcibly removed from a belongings by the land owner without an club of court.

This is to ensure that the constitutional rights of the squatter, to dignity, equality and the right to a home and to property, are not violated.  Our courts frown on "cocky-help" (which is regarded as a course of vigilantism) and when a landlord "takes the law into his ain hands" and forcibly removes an occupier from a property, this violates the rights of access to the courts of the occupiers, and their rights to "accept their say" in a court and bring any relevant considerations to light that might crusade a court not to grant the eviction, or to grant the eviction on sure terms that it otherwise would not have.

Squatter rights

Every bit explained above, the law does not allow persons to unlawfully occupy holding. However, it does require that when unlawful occupiers are evicted from a property, the landlord human activity in a style that is off-white and lawful and that the eviction happens merely after an order of court authorising same is granted setting out how the eviction is to take identify. At that place are many laws that protect an unlawful occupier from existence forcibly removed from a belongings in a manner that would offend the unlawful occupiers' rights to belongings, family unit life, nobility and equality. Only some of the about of import rights will exist canvased in this commodity, as there are and then many and a full exposition of these would require a thesis.

  1. Equally explained above, removing a person forcibly without their consent or without a court order amounts to unlawful vigilantism (self-help) and is not protected past our law. In the event that any person or organisation is unlawfully removed from a belongings, that person will be able to approach a court for an guild to declare the removal unlawful, to declare that they are entitled to render to the property until such fourth dimension as a court gild sanctioning their removal has been obtained, and farther obtaining a castigating cost society (for the legal fees incurred in having to bring the matter to court to protect their right).
  1. In relation to residential tenants, the law protects them fifty-fifty further. Various pieces of legislation get in unlawful for a landowner to remove doors on buildings, lock tenants out, turn off the supply of electricity or water to the belongings, or basically practise anything that would violate the tenant's ability to use and enjoy the property every bit the tenant sees fit (where any of these thing are done without the tenant'due south consent or without an order of court). This applies to business organisations that are squatting too, although to a lesser caste, to the extent that information technology is sometimes arguable that the deprivation of a certain service (east.m. cutting of electricity, telephone, cyberspace, etc.) is lawful in sure circumstances.
  1. The protection afforded to residential and business occupants (namely non to exist forcibly removed from the property without a court order) extends to situations where the right to occupy the property in one case existed but no longer exists (for example where a lease has expired), and also to a state of affairs where there never was a right to occupy given to the occupiers in the get-go place (such equally where a country invasion occurs and people who are not authorised past the owner simply moved onto the state or into the building and occupy the property without permission of owner).
  1. In all of these cases the state owner needs to arroyo a court for an order declaring that it is lawful to evict the unlawful occupier, and this order will not be granted by the court unless the court is satisfied that firstly, the unlawful occupier stands to exist evicted in terms of our police and secondly, that the terms of the eviction will be just and equitable to the occupier.
  1. What is just and equitable when it comes to an eviction is left up to the discretion of the court. In almost cases the courts are much more protective of the rights of individual man beings to dignity, equality, housing and property, than they are to business organization organisations which are being evicted (patently because business organisations don't have human rights in a fashion that natural persons practise).

Conclusion

Although squatters do not have the correct to unlawfully occupy holding, they do accept the correct to be evicted merely after an club of courtroom has been granted, which sets out the terms upon which the eviction tin have identify in lodge to ensure that it is just and equitable.

What is "simply and equitable" depends from one situation to the adjacent, and so consult with your attorney if you require advice on how to get about dealing with unlawful occupiers.