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Lease Agreement

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.


Lease Agreement Template South Africa

Lease Agreement Template – Free Download

By | Lease Agreement | No Comments

Lease Agreement Template Free Download

You have rented out your property but now, for whatever reason, you wish to return and take up occupancy. Are you within your rights as the property owner to remove the tenant, and what do you do if they refuse to vacate?

 

What to do if you want to move back into your property while your tenant still has occupancy

There are two issues to consider. Firstly, your tenant is the current lawful inhabitant and you want to serve a notice to quit, so that you can resume occupancy. The process for this is straightforward. Secondly, what if the tenant refuses to leave, despite due legal process of eviction having been followed? This is a different and more complicated scenario. Let’s look at each in turn.

 

Lawful eviction

To some extent, your rights as landlord depend on what is in the lease agreement. (We’ve written before about the importance of having a written lease. See Tips for a happier tenancy and The Consumer Protection Act and rental agreements.) Under PIE, your tenant is protected against illegal eviction. The Consumer Protection Act (CPA) provides a further layer of protection. In terms of the CPA a tenant is protected for the full term of the lease if there is no material breach on their part. The landlord can cancel the lease if there is a material breach of contract by giving 20 business days’ notice of the breach; but the landlord must give the tenant the opportunity to remedy the breach. Provided they do so, you don’t have the right to evict the tenant and move back in until the end of the contract.

However, when drawing up the lease, it is permissible to include a clause allowing the landlord to cancel the lease, with two months’ notice, if the landlord elects to sell the property or move back in. If the tenant agrees to this clause and signs the contract, then there does not need to be a material breach for the landlord to give notice of eviction, nor is the landlord in breach of any aspect of the tenant’s rights. Without this clause, the tenant is protected upon the sale of the property and the sale can have no impact on the tenant’s right to hold the lease until it expires.

So if you are drawing up a lease agreement for a new tenant and you think you may wish to sell the property in future or resume occupancy for your own purposes, it’s probably wise to include a clause of this nature. But what if you have existing tenants and you have legally given them notice to quit the property, within the terms of the lease and the CPA (perhaps there has been an unremedied breach), and they won’t budge? This is a different situation altogether. What can you do?

 

Unlawful occupancy

At this stage the tenant becomes an unlawful occupier. If you have cancelled the lease lawfully you are entitled to move back into your property, even if the unlawful occupier remains on the premises – effectively cohabiting (whether you would want to do this or not is a different matter). The situation can deteriorate and may result in unpleasant consequences for the landlord, even if there is no misconduct. A tenant with nowhere else to go may behave in a desperate manner, even laying charges of theft, harassment or intimidation against the landlord. Or they may insist the landlord find them alternative accommodation. However, it is not the landlord’s responsibility to re-house the tenant, and this has been tested in the courts.

In Blue Moonlight Properties v Occupiers of Saratoga Avenue, the court found that the property owners’ rights, under the Constitution, should be balanced with those of the occupiers, and ruled that the landowners’ right to equality would be infringed if the state were to burden them with providing alternative accommodation without compensation.

This ruling notwithstanding, if you are in this trying situation, it is not enough to know you are in the right, legally. You may need professional help to reclaim your property. You certainly don’t want to find yourself defending an unsubstantiated accusation of harassment, nor do you want to be share your home indefinitely with someone you didn’t invite.

 

We can help with evictions and your lease agreement

SD Law & Associates are experts in property law and we have vast experience of helping landlords and tenants alike reach satisfactory resolution on a wide range of property disputes, including evictions. Let us help you today with your eviction dispute and lease agreement. Contact Simon on 087 550 2740 or email sdippenaar@sdlaw.co.za.

 

Lease Agreement – Free Download

Lease Agreement Template – Click here (Right click to save PDF)

 

Recommended reading

Original article taken from SDLaw.co.za

Keep your rental income flowing freely

By | Evictions, Lease Agreement, Rent | No Comments

Rental Income - Eviction Lawyer South Africa

Have you recently become a landlord? Or maybe you’ve had problems with tenants in the past and want a bit of guidance to avoid trouble in the future? We’ve laid out the key things you need to know when embarking on a rental agreement with a new tenant.

Is a formal lease necessary?

A written lease is not essential for your agreement to be binding, but it can save a lot of hassle later on and prevent disputes over ‘who said what?’ Putting everything in writing will clarify the terms and conditions of the rental agreement and ensure you have captured all the minutiae that can lead to conflict if not addressed at the outset. Are pets allowed? Can your tenant let the spare room for cash? What date in the month should the rent be paid? A written lease spells everything out so there is no doubt on either side. And if your tenant requests a written lease, you must comply.

We can draw up a lease for you or you can download a standard lease agreement here.

What information should be included on a written lease?

  • Your name and your tenant’s name
  • Your postal address
  • Your tenant’s postal address
  • The address of the property being leased
  • The agreed rent, the amount of increase and when it may increase (e.g. by 10% at annual renewal) and the frequency of payment (monthly, quarterly, etc.)
  • The amount of any deposit
  • What each party is responsible for, e.g. utilities, maintenance, etc. (usually, tenants pays for charges related to things they use, such as water and electricity, and landlords pays for charges related to the property, such as rates)
  • The notice period for quitting the property (applicable to both parties) and the conditions under which you can end the agreement early (for example, if specific maintenance is not done, or if the tenant is in arrears with the rent)
  • If there are ‘house rules’, such as no loud parties, they should be signed by both parties and attached to the lease
  • A list of defects drawn up during a joint inspection when the tenant moves in. This should be signed by both parties and attached to the lease

How does a background check work?

You should always ask prospective tenants for references. While it is normal to obtain a reference from the current tenant, it can also be helpful to speak to previous landlords, in case the current landlord gives a good reference simply to get rid of an undesirable tenant. You should also request a letter from the tenant’s employer to verify his employment status and income. You can also do an ITC credit check (call TransUnion ITC on 0861 482 482 or visit www.transunionitc.co.za) or we can carry that out for you.

What about a deposit?

A deposit is your insurance against your tenant defaulting on the rent or damaging your property beyond normal wear and tear. A deposit must be put in an interest-bearing account for the duration of the tenancy and given back to your tenant, plus the interest it has earned, when the tenant moves out. But the deposit can legally be retained and used to pay for repairs or to cover the money owed to you in the event of non-payment of rent.

What if the tenant is behind with the rent?

Technically, your tenant is in breach of contract. Your lease should have a breach clause in it; this is the time to enforce it. If you don’t have a cancellation agreement or breach clause in the lease, or if you want to give your tenant a reasonable chance to put things right, it is good practice to write a letter giving your tenant seven days to pay, failing which you will cancel the lease. We can draft the letter and send it on your behalf. Many tenants will take a ‘lawyer’s letter’ more seriously than one from the landlord alone!

What is the eviction process?

A landlord may not evict a tenant. You may seek a court order to evict a tenant if your tenant is in breach of contract, for example if the rent has not been paid. However, we would urge you to encourage the tenant to rectify the breach. In fact the Consumer Protection Act allows for this. Legal action is the last resort and, however justified, is never pleasant, especially where someone’s home is involved, so it is always advisable to give the tenant the opportunity to put things right.

What if there is damage to the property?

There will always be normal wear and tear. More serious damage can be repaired out of the deposit, if you asked for one. These steps will ensure a fair process for both parties:

  • When your tenant moves in, inspect the property together and list, in writing, any existing defects – you should both sign this and attach it to the lease agreement
  • When your tenant moves out, inspect the property again together, preferably just before moving day. Compare the two lists
  • Either of you can do the repairs. If you decide to do them yourself, keep all receipts for repairs paid for out of the deposit. Your tenant is entitled to see them
  • If the repairs cost less than the deposit plus the interest earned, you must repay the balance to your tenant

Who can help?

The Rental Housing Tribunal can advise you of your rights and responsibilities as a landlord and can help in the event of a dispute with a tenant.

Or contact us. At Simon Dippenaar & Associates Inc. we are a firm of specialist eviction attorneys with extensive experience in eviction law and property law. We act for both landlords and tenants and therefore know the challenges faced by both parties; and we have an intimate knowledge of the legislation from both sides.

Call Cape Town Eviction Attorney now on +27 (0) 86 099 5146 or email sdippenaar@sdlaw.co.za if you need help drawing up a lease or handling a difficult situation with an existing tenant.

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