It is possible that an eviction application may have to be instituted during the process of transferring a property. We usually encounter this conundrum in two different instances:
When a Property is bought and sold on a sale in execution; and
In cases where a tenant of the seller or the seller himself refuse to vacate the property at the time of transfer or at the time that occupation is granted in terms of the provisions of the Offer to Purchase (OTP).
We will delve deeper into the two situations above and explain the best options regarding initiation of eviction proceedings.
Property bought and sold in a sale in execution:
It is standard practice for the Conditions of Sale in a sale in execution to contain a clause giving the right of occupation to the purchaser on the “fall of the hammer”. The problem hiding behind such a clause, is that this right of occupation does not give the purchaser the right to institute eviction proceeding before the property is registered in his/her name. To recap; the right of ownership is required in order to establish a right to initiate eviction proceedings. The solution to this problem, we suggest, is that the attorney mandated to effect the eviction application, should also be appointed as the conveyancer for the transfer of the property. The reason this solution is the best option is that this places the mandated attorneys in a position to prepare all necessary eviction documentation and initiate the eviction proceedings on the day right after registration of the property in the name of the purchaser. In this way, it cancels out the problematic situations where the eviction application is instituted prematurely; which will lead to the new owner not having the required right to bring the eviction application (locus standi), or too late: which will lead to an unnecessary delay in removal of the occupant.
Tenant of the seller or the seller himself refuses to vacate the property at the time of transfer:
Where the seller refuses to vacate the property it would now be apparent that eviction proceedings can only be initiated after transfer of the property into the name of the purchaser. The owner can obviously not institute eviction proceedings against himself. It would also be advisable to start the formal procedure as soon as registration has taken place, provided that the offer to purchase does not allow the seller an extended right of occupation.
Where the seller has a tenant in the property and for some reason, the lease agreement has been cancelled or terminated by the effluxion of time; the situation could arise where the seller frantically wants the tenant evicted prior to registration of the property. This would benefit the purchaser greatly in that he would not be burdened with legal costs to institute the same process. In a situation like this it is crucial to note that should the eviction proceedings be initiated by the seller, as the applicant, and the property is transferred into the name of the purchaser before the eviction order has been handed down, the seller loses her locus standi. Only on transfer, will the purchaser become the owner and have the right to initiate eviction proceedings. As previously mentioned, a quick solution to the problem would be to have the mandated eviction attorneys as the conveyancing attorneys. It would further be advisable to initiate eviction proceedings as soon as possible before the transfer since an eviction can be finalised in the same or slightly more time than it would take to complete the transfer.
During this time the offer to purchase would regulate the occupational rent aspect of the sale. In the typical situation the right of occupation will transfer to the purchaser on transfer and for this reason, should the eviction take longer to finalise than the transfer, the seller could be held liable for occupational rent payable to the purchaser since it is his duty to give vacant occupation of the property to the purchaser.
The seller would usually be required to provide vacant occupation, for this reason in the majority of the cases the seller would be liable to initiate eviction proceedings and accordingly fit the bill for the legal costs. Unless, the OTP specifically contain a different agreement between the parties.