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ESTA Series: Terminating Occupancy

Can you evict someone from your property?

Before embarking on eviction proceedings in terms of ESTA, the owner will have to determine whether ESTA applies to the current situation.

Does ESTA apply to the situation? Read here to determine the scope.

An occupier’s right of residence may be terminated on any lawful ground, but ESTA requires that the termination must be just and equitable.

The Act identifies the following factors to be taken into consideration in determining the just and equitability of the termination:

  • The general fairness of any agreement on which the owner relies
  • The conduct of the parties that gave rise to the termination
  • Interests of parties, including the hardships of the owner or occupier
  • The reasonable expectation of the possible renewal of the agreement
  • The fairness of the procedure followed

When land occupiers are employees

The occupancy of employees, in as far as they are considered to be occupiers by the Act, will terminate when they resign or is dismissed under current labour laws.

ESTA makes special provisions for occupiers who resided on land for longer than 10 years and have reached the age of 60 years or, where the occupier is an employee, cannot continue with the performance of his/her duties as a result of ill health, injury or disability. In these instances, the occupier’s occupancy may only be terminated when he/she is in breach of his duties and obligations.

Read more about the rights and obligations of land owners and occupiers

It should be noted that the mere refusal to or failure to labour shall not constitute such a breach. The occupancy of spouses and dependents of these occupiers may only be terminated by 12 months’ written notice to vacate the land.

Once the right to occupy the land has been terminated, the owner and the occupier may agree to the terms and conditions, which applied before termination and the date of the eviction of the occupier. When no agreement can be reached, the owner may approach a court for the determination of reasonable terms and conditions of further residence.