Summary
Summary summaries
- Course
- Property Law
- Institution
- University Of The Witwatersrand (wits)
Property law summaries
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ESTA NOTESS2 – Lawful occupation on rural or agricultural land.
Lawful occupation = have the consent of the owner (express or tacit consent).
Tacit consent could come in the form of not chasing someone away or objecting to their presence.
2-Pronged Process to Evict
1) Terminate consent of the lawful occupier.
2) Carry out the eviction process.
Here comes the confusion…My advice, make a flow diagram to illustrate ESTA. ESTA is an absolute
mess. It reads like it was drafted by a 4-year-old on a sugar rush.
Section 3 says that consent can be terminated in terms of s8.
Section 8 creates 2 kinds of occupiers.
1) First one is short term occupier
2) Second one is a long-term occupier
For a short-term occupier, terminate consent under s8(1) which says ‘you can terminate consent on
any lawful ground provided it is just and equitable under the circumstances’.
There are MANY factors that help determine this:
a) The fairness of any agreement, provision in an agreement or law which the owner or person
in charge relies.
b) Conduct of the parties giving rise to the termination.
c) The interests of the parties including comparative hardship to the owner/person in charge,
occupiers concerned and any other occupier if the right of residence is or is not terminated.
d) Existence of a reasonable expectation of renewal
e) The fairness of the procedure including opportunities to make representation before
decision to terminate.
Section 8(4) creates long term occupiers (remember how we said s8 creates two kinds of occupiers
above). 2 Requirements:
1) Live on the property for more than 10 years AND
2) Be more than 60 years old OR you were an employee on the property and can no longer
work.
If both of the above scenarios are met, consent can only be terminated in terms of s10(1)(a) or (b) or
(c). (remember when I said it would be confusing).
Section 10 deals with actual eviction but because of s8(4) they are extended for purpose of
terminating long term consent.
S10(1)(a) – Consent may be terminated if the occupier has breached s6(3) & the court is satisfied
that the breach is material & occupier has not remedied such.
S6(3) – An occupier may not (a) intentionally and unlawfully harm any other person occupying the
land. (b) Intent and unlawfulness that cause material damage to property of the owner/person in
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