Good news for property owners in South Africa

A High Court ruling has reaffirmed that registered property owners can enforce eviction orders even if there are allegations of fraud or disputes over the property’s sale.

Van Deventer Dowlath & Marx Incorporated’s Associate Director, Jason Berkowitz, said the recent case of Lancelot Properties v Gerretsen and Others has set a strong precedent.

The High Court ruled that a registered title is now enforceable, not only once every objection an occupier can think of has been litigated.

“The court refused to allow an occupier’s shotgun objections to override a registered owner’s right to their own property,” Berkowitz said.

“It cut straight through a long list of objections from disputed liquidation, disputed sale, disputed transfer, and even claims of an ongoing criminal investigation.”

In doing so, he said the court confirmed that if someone holds registered title, they’re entitled to enforce it – unless and until a court has actually taken it away from them.

In this case, the property was bought at a liquidation auction. The occupier was a long-standing resident with a personal connection to the previous owner.

She resisted the new owner’s claim on almost every available ground. “From a landlord’s perspective, this is the fact pattern that keeps you up at night,” Berkowitz said.

“An occupier who had lived there for years had deep-seated ties to the property and was determined to unravel the entire chain of title.”

However, Berkowitz explained that a well-documented purchase and a properly run PIE process ended her resistance.

The most valuable part of the judgment for landlords is the court’s treatment of the allegations of fraud and irregularity.

“The occupier alleged fraud, procedural irregularities, and referenced ongoing criminal investigations, which, on paper, sounded like it should carry weight.”

“But the Court was clear – none of them resulted in the underlying transaction being set aside. Until that happens, the registered owner’s title stands – full stop.”

Berkowitz said this is a very reassuring principle for any landlord who has bought a property through a process such as liquidation or sale in execution and later faces an occupier trying to relitigate the transaction.

When courts will grant an eviction

Berkowitz explained that the court also had to weigh whether eviction would be just and equitable, as required by PIE.

• Here, too, the outcome was good for the property owner. The following common-cause facts weighed in their favour:
• The occupier was not elderly and had no dependents
• She owned other property from which she derived income
• She could not show that eviction would leave her homeless or without alternative accommodation.

“This is an important reminder that lengthy occupation on its own is not a trump card. Where an occupier has resources, income, and somewhere else to go, the balance tips firmly in the owner’s favour,” he stressed.

“Landlords, therefore, don’t need to be discouraged from pursuing eviction simply because an occupier has been on the property for decades.”

According to Berkowitz, the real question in eviction cases is always whether the occupant will actually be left without a roof over their head.

“The court declared the occupation unlawful, granted the eviction order, and authorised the Sheriff to remove the occupier if they failed to vacate in time, with costs awarded against the occupier.”

“Possession restored, a clear enforcement mechanism for occupiers who refuse to move, and a costs order to boot is an excellent outcome for all landlords.”

However, Berkowitz cautioned that attorneys who are managing an eviction process need to be aware of one critical point.

“The court’s written reasons and its final order did not specify the same period for vacation, which is why it’s important to always work off the order itself, not the reasoning.”

“It’s a small thing to check, and it makes sure that you enforce exactly what the Court granted without giving anyone room to argue about it later.”

Ultimately, the message from this court provides much-needed certainty for landlords and investors making decisions about acquisitions, liquidation purchases, and problematic tenants, Berkowitz said.

“If your title is properly registered and you follow the PIE process correctly, allegations – however dramatic they sound – aren’t enough to stop you from recovering your property.”

“Our advice to clients is always to do the groundwork properly on the front end – the purchase, the notice, the process – and the courts will consistently back you when it counts.”