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Eviction law case summaries

No lease? No problem. Tenants still have rights

By | Eviction orders, Evictions, Lease Agreement, Rental Housing Act

Rental housing legislation provides tenants with protection, whether or not there is a written lease

Landlords must follow the legal procedure for eviction. Know your rights as a tenant.

It’s not best practice, but it often happens that a landlord and tenant do not have a written lease agreement. In the digital age, when everything is captured online and on cell phones, it is understandable to assume this means there is no lease. However, the Rental Housing Act does not require a lease to be in writing, although it is strongly advised. A verbal agreement between the parties constitutes a lease agreement, even if that conversation consists of no more than a statement of the monthly rent and the amount of time the property may be occupied.

So when we talk about “no lease”, what we really mean is no written lease. And, although the tenant still has rights under the law, the absence of clarity surrounding the terms and conditions of the tenancy can lead to disputes and confusion. But it does not mean the eviction process is any less stringent.

One reason why a tenant might not have a lease

There are two scenarios in which the tenant might not have a written rental agreement, and the eviction process is slightly different in each case. The first is where the landlord and tenant have agreed the terms of the occupancy informally, and perhaps shaken hands on the deal. They may be friends or family members with a harmonious enough relationship to consider a legal document unnecessary, or the property may be a cottage in the garden of a homeowner who takes an informal approach to letting it out. This won’t be permitted for much longer, as we will come on to, but at present it is not uncommon.

Another reason for no lease

The second scenario is where a lease has expired, but the tenant has the landlord’s permission to remain in the property on a month-to-month basis. In some countries this is called a “tenant-at-will”. This might occur because a tenant has purchased a property and is waiting on an entry date; or the property owner is planning to sell and does not want to commit to a lengthy lease period but is happy for the tenant to occupy the property while seeking alternative accommodation. Or there may be minor breaches to the lease that are not serious enough to cause the landlord to evict but nonetheless they do not wish to renew the lease. The tenant may be allowed a few extra months on a month-to-month basis to avoid homelessness while seeking alternative accommodation.

Implied leases

If a lease expires and the tenant continues to pay rent, and the landlord continues to accept it, without spelling out the conditions noted above, they have effectively created a new, implied lease. There are also certain fixed-term leases that become implied month-to-month leases after expiry, in terms of the Consumer Protection Act (CPA). By law, the payment and acceptance of rent after the official end of the lease implies that a new lease has been agreed.

Eviction with a verbal lease

The eviction process where there is a verbal lease is identical to the process for a written lease. The Prevention of Illegal Eviction Act from and Unlawful Occupation of Land Act, No 19 of 1998 (PIE Act) ensures that landlords follow a clearly defined set of actions, and there must be due cause. No one can be evicted without reason or notice. There must be a breach of the lease agreement. In the absence of a written document setting out the conditions of the tenancy, the most common breach is non-payment of rent. This is the one contractual obligation a tenant has that cannot be disputed. Some landlords may be willing to forgive a late payment or two, but this is a matter for personal discretion. Legally, if the rent is not paid on the date it is due, a breach has occurred. In the first instance, the tenant is given the opportunity to rectify the breach. The landlord serves notice to the tenant to this effect, and then if the breach is not rectified, the landlord can terminate the lease contract.

The landlord must give notice of the intention to evict the tenant through the courts. The eviction order will give a date for a court hearing, at which the tenant may offer a defence. If there is a valid defence, a trial date will be set. In the absence of such a defence, the court issues a warrant of eviction to the Sheriff. Note that only a Sheriff is authorised to remove a tenant or a tenant’s possessions from a property.

Month-to-month or open-ended leases

The landlord must give the tenant “reasonable” notice of termination of the lease. A calendar month’s notice will satisfy the 20 business days required by the CPA and is considered reasonable. There does not have to be any breach of an agreement. If the tenant fails to vacate the property at the end of the calendar month, as requested, then the landlord can begin the eviction process described above.

Time’s running out

Soon this advice will be irrelevant. The Rental Housing Amendment Act 35 of 2014 will require  landlords to provide tenants with a written lease agreement. Verbal agreements will no longer be binding. The Rental Housing Amendment Act will apply immediately to new lease agreements and landlords will have six months to bring existing agreements in line with the new legislation. At the time of writing, the Act has not yet been gazetted and a commencement date has not been announced. We will keep readers of this blog informed.

Seek the guidance of an expert eviction lawyer

If you are a tenant without a written lease and would like to discuss your circumstances, or if you are a landlord needing to draw up a formal lease agreement, contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za to discuss your case in confidence. Eviction lawyers Johannesburg and Cape Town are experts in rental property and eviction law, and we uphold the rights of both parties without bias.


Khayelitsha land occupiers to square off with City in court

By | Eviction news, Eviction notice, Eviction orders, Evictions

The group occupying land in Makhaza plan to oppose their eviction in court on 9 September

Photo of rebuilt shacks
Residents from Mpukwini informal settlement in Khayelitsha have begun rebuilding homes demolished by the anti-land invasion unit two weeks ago. The residents plan to oppose their eviction in court next month. Photo: Vincent Lali

Shack dwellers at Mpukwini informal settlement in Khayelitsha are preparing to square off with the municipality in court next month. They want the eviction order against them scrapped and the City of Cape Town to build them houses on the land.

About two weeks ago, the City’s anti-land invasion unit and law enforcement members demolished shacks belonging to residents who occupied the land in Makhaza. Residents at the time protested as their building materials were confiscated by officials.

Since then, many residents have rebuilt their homes on the land. The City has an urgent interim eviction order against anyone illegally occupying the land, but the occupiers are raising money for transport to collect some of their building materials from the City’s depot.

Mayco Member for Human Settlements Malusi Booi said that the City was “considering its options” on how to deal with the occupiers. Booi added that if the occupiers wanted to challenge their eviction, they needed to “show cause, if any” as to why the final order should not be granted on 9 September.

But community leader Bandile Kona said they were there to stay. “We don’t want to go anywhere else. We will stay here until the City of Cape Town builds RDP houses for us here.”

He said they were not concerned with the lack of basic services. “I had no other option but to rebuild because I had no place to stay and keep my belongings,” he said.

Samela Mene moved to Mpukwini from Island informal settlement, after her shack flooded during heavy rains. She said life was better at Mpukwini because it was closer to public transport and a crèche for her child.

Mene shares her small shack with her elderly mother and her children aged seven and three. “I’m waiting for the court to make a ruling on our occupation before I extend my shack so it can accommodate my whole family,” she said.

Another resident, Lelethu Mvumvu, whose shack was among those demolished, now squats in a shack with two relatives and their four children at Mpukwini. “I still struggle to raise the R500 that I must pay to law enforcement to get my building materials back,” she said.

On Saturday, an official who only identified himself as Gautanu from the Anti-Land Invasion Unit visited the settlement to warn resident against building more shacks.

“If you build more shacks, your belongings and building materials will be taken away to the scrap yard,” he told residents in the presence of GroundUp. “Whenever there is a new structure, we will take it away along with the furniture. The judge told you not to build more shacks,” he said.

Reprinted from GroundUp with thanks.

*Simon Dippenaar & Associates, Inc. is a law firm in Cape Town, now operating in Gauteng and Durban, of specialised eviction attorneys, helping both landlords and tenants with the eviction process. Contact one of our eviction lawyers on +27 (0) 86 099 5146 or info@sdlaw.co.za if you have been evicted unlawfully.

Further reading:

Police Accused of Doing Nothing

Unlawful Evictions

Durban Evictions

The Sheriff in Town

Shack Evictions

Terminating lease for higher rental?

By | Eviction law case summaries, Lease cancellation to increase rent

CASE SUMMARY: Mphando v Aengus Lifestyle Properties Case no.: 611/201 In the Supreme Court of Appeal

By Simon Dippenaar & Associates Inc.*

The 18 appellants were lessees of flats in a ten-storey building in Johannesburg, which was owned by the respondent. The respondent applied to the South Gauteng High Court for the eviction of the appellants and their families on the grounds that their leases had been validly terminated. The appellants argued that the respondent’s termination of the leases was invalid and that even if the leases were validly cancelled, it would not be just and equitable to evict them.

In the High Court proceedings, the respondent conceded that two of the leases had not been validly terminated. The Court held that the remaining 16 leases were validly cancelled. In respect of 9 of the leases, the Court found that there were no grounds, based on justice and equity, to justify a refusal to evict them, and as such, they were evicted. In respect of the remaining 7 appellants, the Court held that the eviction would render them homeless and therefore it would not be just and equitable to evict them. The Court therefore postponed the matter so that the City of Johannesburg municipality could be joined as a party to determine alternative accommodation available. The appellants appealed the decision to the SCA.

The SCA had to determine whether the leases were validly cancelled. The respondent gave written notice of termination of the leases to each of the appellants, which called upon them to vacate on different dates. The appellants were notified that if they wished to remain in their flats, they would need to enter into new lease agreements with a significantly higher monthly rental. The appellants refused to accept the termination and could not afford to pay more. They, therefore, remained in the flats and continued to pay the rent as before. The respondent had spent approximately R1 million on renovations and servicing the building and, therefore, required a higher rent to be able to cover the cost of the bond, renovation and maintenance.

The appellants argued that the leases were not validly terminated because:

  1. Each lease agreement contained a tacit term which prohibited the respondent from terminating the lease agreements in order to effect a higher rental;
  1. To allow the respondent to terminate the lease agreements solely on the grounds of a rental increase would be contrary to public policy

The appellants relied on the officious bystander test, arguing that if the officious bystander were to ask the parties whether they intended the owner to be able to circumvent the rental increase provision by making use of the termination clause, the answer would have been no.

The appellants also contended that a tacit term was necessary to ensure the efficacy of the agreements. They argued that if the tacit term was not in place, the respondent would be able to demand an increase in rental simply by threatening to cancel the agreements.

The SCA found these arguments to be logically unsound and it would mean that the respondent entered into a lease of infinite duration without being entitled to terminate the agreements, even when they were not commercially viable.

The Court also found that a lessee of property has no security of tenure in perpetuity – the lease agreements could be terminated on notice. Therefore, it could not be argued that the termination of the leases constituted an infringement on the appellants’ right to security of tenure.

The appeal was therefore dismissed.

*Simon Dippenaar & Associates Inc. are a Cape Town law firm of specialised eviction lawyers in South Africa, with offices in Cape Town and Gauteng, and Durban, representing landlords and tenants with commercial, residential, and farm evictions.