Depending on where you live in South Africa, the abandoned property can be a rare and unusual sight or a completely common occurrence. In certain areas, it’s not strange to see deserted houses, abandoned furniture, and even derelict buildings. With so many South Africans living in abject poverty, it’s no wonder that these locations and items are often ‘claimed’ over time by different individuals looking for a place to stay or assets of their own. Additionally, many disputes tend to arise between tenants and their landlords over the ownership of a specific piece of land or an item left behind after a move. Indeed, we often hear stories in the news about squatters and their rights to property in the eyes of the law. The arguments that develop over these discussions can get surprisingly heated, but they raise a few interesting questions at the same time. For instance – What does the law say about the abandoned property? What happens to it? And how can you claim it legally?
Generally speaking, our common law and our by-laws usually hold property up to a kind of reasonable person test when determining whether or not it has been abandoned. Before we get into the meat of the matter, it’s probably a good idea to differentiate between movable and immovable property.
In other words, if you found a chair lying on the side of the road with a sign that said, “free chair”, you could probably claim that item with little difficulty as a reasonable person would assume that the item has in fact been abandoned.
As you’d imagine, small movable items are often held to a less stringent standard of abandonment than more valuable and immovable assets. This means that the process of claiming abandoned items will be different depending on the item in question.
What Happens to Abandoned Property (Movable Possessions) in South Africa?
Let’s assume that a tenant or a squatter has left some items of clothing and some blankets on your property after they’ve left. Are those possessions up for grabs?
Well, we have to determine whether or not the items have been truly (reasonably) ‘abandoned’.
Normally, if you have taken reasonable steps to ensure that the tenants/squatters have left the property permanently and that the items have actually been abandoned by them, you will be free to use/sell them as you see fit.
However, if you act too hastily and the individuals come back to claim their property within a relatively short period of time, you may be forced to pay damages, so it’s probably best to hold on to the items for a longer period of time to ensure that they really have been abandoned.
What Happens to Abandoned Property (Fixed/Immovable Property) in South Africa?
The first thing to realise about this issue is that property is not considered abandoned just because nobody is currently living there or using it.
Additionally, even when the property has been seemingly abandoned, the title deed does not suddenly become available to the first person who finds it.
When we discuss abandoned property in South Africa, most people usually associate the topic with that Squatter’s Rights and the idea that someone can take unused property from you if they simply stay there and refuse to leave.
This is not the case. In most instances, landowners will still have the legal right to evict the squatters from their property, however, the squatters (a person or organisation occupying a property without a legal right to do so) also have the right to be evicted in a fair and lawful manner.
Simply put, squatters can be removed from a landowner’s property, but the landowner must first receive a court order to sanction this act. They may not simply remove the individual by force or do something that would prevent the squatter’s use or enjoyment of the property. In other words, a landowner may not just lock the squatter out of the property, turn off the electricity and/or water, etc.
This definition of squatting does not only apply to people who move in illegally, but also to those who were once renting the property lawfully and have refused to leave.
All that said, there is a provision in the law that allows a squatter to acquire the rights to a property after a certain period of time has elapsed.
How Long Does a Property Have to be Abandoned for Before it Can be Claimed?
As with many other countries, abandoned properties in South Africa are broadly viewed in a manner in keeping with the ancient Roman laws of res derelictae and res nullius. This fact can be most clearly seen in the case of Reck v Mills and Another.
Generally speaking, this means that property can be acquired via Adverse Possession or Acquisitive Prescription once enough time has elapsed.
If a person has been squatting on a property continually for a very long period of time (up to 30 years) they may be able to claim the deed for themselves.
However, it should be noted that this rule does not normally apply to publicly owned land.
How Do I Claim Abandoned Property in South Africa?
Let’s say you’ve found an abandoned property in South Africa and now you’re trying to claim it legally, what’s the first step?
Well, while you can try to squat there for 30 years and attain it through adverse possession, it would probably be quicker to hire a conveyancer to see if they can track down the original owner. You can then attempt to buy the property from them directly.
If you cannot find the owner, you may want to check in with the local municipality to see whether or not they have an outstanding account. If this is the case, you may be able to purchase it at auction.
In Conclusion – What does the Law say about Abandoned Property in South Africa?
We can effectively divide the topic of abandoned property in South Africa into two different sections, namely: Abandoned Movable Property, and Abandoned Immovable Property.
The abandoned movable property would normally incorporate items left behind by a tenant after they’ve left the property permanently, or discarded items on the street. For the most part, if you have taken steps to ensure that the tenant has in fact left permanently and that the items have actually been abandoned (as determined by a reasonable person), then you may take possession of them yourself.
That said, a person who returns to reclaim their ‘abandoned’ item may still have a valid claim to it after a relatively short period of time has elapsed, so it’s probably best to hold onto the item for a little while to ensure that it really has been abandoned and that you will not be held liable for damages if you use or sell it.
On the other hand, abandoned immovable property, such as homes and buildings, are held to a much stricter standard when determining abandonment and you won’t just be able to claim a location as your own if it hasn’t been lived in for a few days.
Generally speaking, landowners will still have a claim to the property long after it has been ‘abandoned’ and any squatters who are hoping to claim it through adverse possession will need to stay there continually for many years before the ownership reverts to them.
There is a persistent myth surrounding squatter’s rights which implies that squatters cannot be removed from a property and will eventually and inevitably end up owning it themselves. This is simply not the case.
Landowners can have squatters removed from their property – they just can’t do it without the proper authorisation.
If you want to remove squatters from a property, you must first receive a court order to ensure that the eviction is carried out in a just and lawful fashion.
It should also be noted that the term ‘squatters’ refers to any person occupying a property illegally and includes individuals who were once rent payers on the property but have since refused, or have become unable, to pay.
If you wish to purchase abandoned property in South Africa, you should hire an experienced conveyancer who can track down the owner of the land and make an offer. Alternatively, prospective buyers can attempt to contact the local municipality to see if they are able to purchase it during an auction. Trying to gain the property through adverse possession is much riskier as the owner may return at any point and charge you with trespassing.
It should also be noted that publicly owned land is generally exempt from this form of possession, and thus, it cannot be gained via prolonged squatting.
Disclaimer LAW101: All of our posts are for research purposes only. Law 101 aims to assist its readers with useful information on the laws of our country that can guide you to make decisions in line with the South African Governmental Laws currently in place. Although our posts cite the constitution in many instances, they are intended to assist readers who are looking to expand their knowledge of the law. Should you require specific legal advice we advise you to get in touch with a qualified legal expert.
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