MAIN IMAGE: Shaun du Bois, principal at Just Property and Peter Mennen, head of legal at TPN Credit Bureau.
Can a landlord make a tenant move? Shaun du Bois, master practitioner in real estate and principal at Just Property and Peter Mennen, head of legal at TPN Credit Bureau, answers frequently asked questions on evictions.
What process is the landlord required to follow if he wants to evict?
According to Section 14 of the Consumer Protection Act, a landlord can make a tenant move out before the end of the lease period if the tenant breached the terms of the lease and fail to remedy this breach within the required period or if the terms under which the landlord may terminate are stipulated in the lease and do not constitute an unfair practice (Section 4(5)(c) of the Rental Housing Act). The Prevention of Illegal Eviction (PIE) Act also protects tenants against unfair practice and the landlord must follow the letter of the law. The legal landscape is complicated and due diligence must be done before any evictions are made.
I have defaulted and can’t pay the rent. I have been told to vacate the premises. When I signed my lease, I gave my mother’s address as an alternative residence, but she passed away recently, and I have nowhere else to go. What are my options?
Should the tenant remain in a property after the lease agreement has been lawfully cancelled, that person becomes an unlawful occupier. The term ‘squatter’s rights’ is sometimes referred to but is not a term associated with South African Law. The landlord, as discussed above, will have to follow due process and obtain an eviction order through the Court to evict the unlawful occupier. The litigation process can be contested however attorneys’ fees can be costly and the eviction traumatic. It would be best to always seek an amicable solution to the issue before the matter ends up in the courtroom. In some cases, the owner may well be lenient and allow the tenant to remain for another month; however the latter will remain liable for the rental and possibly even contractual damages.
How much warning is an owner expected to give a tenant if they do not intend to renew the lease?
Section 14 of the CPA states that a tenant should be given between 40- and 80- business days’ notice of the landlord’s intention to renew the lease agreement for a further term. The same applies to other agreements outside of rentals as well. Think about a cell phone contract. The telecoms provider sends that fantastic SMS to let you know that your contract is up for renewal and that you can come and pick up your new phone. In ideal circumstances, it would be helpful to give the tenant as much notice as possible, but circumstances do not always permit more than the legal minimum.
If a landlord decides to sell before the end of the lease, what options does he have, and what options do the tenant have?
This point is often misunderstood. Tenants often believe that the principle of ‘Huur Gaat Voor Koop’ (the lease comes before the sale) is always applicable. This is not the case. As pointed out previously, under section 4 (5) (c) of the Rental Housing Act, the landlord (seller) is legally entitled to include a clause in the lease agreement that allows for the cancelation of the lease when they intend to sell the property, but this must happen before the sale has been agreed. This is a clause that should be included in every lease agreement!
It is important to note that the rights of a bank that has bonded the property will take precedence over a tenant’s rights. If the landlord has not met his responsibilities to the bank in terms of a mortgage agreement that was registered before the lease was signed, then the bank may put the property on auction. The sheriff of the court must try to sell the property with the lease in place but if this is not possible, the sheriff will proceed to sell the property without the lease in place.
The landlord has sold the house without offering it first to the tenant. Is this legal?
Many tenants believe they have the first option to buy or a right of first refusal over a property they are renting, however for this to be the case, a clause providing for such a right must be put in writing and included in the lease agreement or in an addendum that is signed by both parties, which is seldom done. It is important to differentiate between a right of first refusal and an option of purchase. An option to purchase is a far stronger right for the tenant and should be agreed before the lease is entered into. This gives the tenant the right to purchase the property at a pre-agreed amount during the subsistence of the lease and should the tenant elect to exercise this option, the landlord would be obligated to sell the property on those terms. By contrast, a right of first refusal merely means that if during the duration of the lease a landlord elects to sell the property and is ready to accept an offer on that property, then the landlord must first offer the property to the tenant at an equal or higher purchase price than that which has already been offered to the landlord. If the tenant does not exercise this right of first refusal, then the landlord will be entitled to sell to the 3rd party purchaser.
It is rare that these clauses are included in a lease. Despite this, it is always good practice to offer the tenant the opportunity to purchase the property in the event that the property is placed on the market as it would make for a simpler process that would incur the least disruption.
