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landlord and occupier rights Archives | Eviction Lawyers South Africa

Sep 08
0

Reimbursement for property improvements?

By | Lease Agreement, Rental Housing Act, Tenants

Don’t rely on oral agreements

It is not uncommon for long-term tenants to make improvements to a rental property using their own resources. After all, it is their home and the project they want to undertake may not have any obvious benefit to the property owner. Therefore, it may not be reasonable to expect the landlord to fund the improvements, in sharp contrast to essential repairs. But what expectations does this create? Can the tenant reasonably expect to be reimbursed for their financial outlay? Does their investment in the property give them an advantage if the owner eventually decides to sell? These questions were put to the test in a recent case, which provides lessons for both landlords and tenants.

The case

The dispute arose after a tenant had leased a property for over 15 years and made extensive improvements. The tenant claimed there was an oral agreement giving them a right of first refusal to buy the property, which justified the investment in repairs and renovations. When the tenant fell into rental arrears exceeding R1 million and was evicted, they counterclaimed for reimbursement of c. R900,000, alleging both breach of an oral right of first refusal and unjust enrichment. Unjust enrichment is a legal concept that means one person has unfairly benefited at the expense of another, and it would be wrong for them to keep that benefit without compensating the other person. However, for a claim of unjust enrichment to be successful, the tenant must demonstrate that certain legal criteria were met.

The landlord denied any such agreement existed and relied on clear lease provisions which stated no compensation would be paid for improvements, regardless of consent.

The property was eventually sold for R3 million, and the landlord claimed outstanding rent adjusted for prescription. This means that the landlord asked for unpaid rent, which the court adjusted because of a legal principle that limits the time period in which a claim can be made. The landlord was only entitled to the rent that was still legally collectible, taking into account any relevant time limits.

Court findings

Unfortunately for the tenant, the court did not find in their favour, citing several reasons. Their case might have been different had they not fallen into severe rental arrears. But the court found no enforceable right of first refusal. There was no written agreement granting the tenant a right of first refusal. Any oral agreement was unenforceable because the lease required amendments to be in writing and signed by both parties.

The rent increases the tenant had endured were lawful. The lease included a 10% escalation clause every two years. The rent increase from R22,000 to R28,000 in December 2017 was lawful and reasonable under the Rental Housing Act, according to the court. Furthermore, no compensation was deemed appropriate for improvements the tenant made to the property. Clause 12 of the lease explicitly barred compensation for improvements made by the tenant, whether or not the landlord consented. The tenant’s claim for reimbursement was therefore dismissed.

Lastly, their claim for unjust enrichment was rejected. In this case the tenant failed to frame their claim under one of the recognised legal enrichment grounds. The lease explicitly stated that no compensation would be paid for improvements, removing a critical component of legal justification. The court emphasised that unjust enrichment claims must meet strict legal criteria. The tenant’s removal of improvements also weakened their claim. The tenant had removed several enhancements upon vacating, and no joint inspection was conducted. The property was deemed to be in good repair, further undermining  the claim.

Practical takeaways for tenants and landlords

While the case had an unsatisfactory outcome for the tenant, it offers important lessons for all parties in a rental housing situation. Most importantly, get agreements in writing! While verbal or oral leases were once legally acceptable, the Rental Housing Amendment Act 35 of 2014 introduced the requirement for a written lease. If you want a right of first refusal or compensation for improvements, ensure these are clearly documented in a written lease amendment signed by both parties. Make sure you understand your lease, whether you are landlord or tenant. Read the lease terms carefully, especially clauses on rent escalation and improvements. Don’t make or ask for oral promises, which are difficult to enforce.

If you are the tenant, seek consent before making improvements. If you are the property owner, make it clear that, while you may not oppose a reasonable enhancement to the property as long as it is not a structural alteration, you want to be informed and give consent to any plans the tenant may have. 

Tenants should ask for written consent before spending money on renovations and clarify whether they will be reimbursed. Equally, landlords should maintain thorough records of lease terms, communications and any inspections to protect everyone’s interests. Finally, regular, clear communication about lease terms and property conditions will prevent disputes and potentially costly legal battles.

For further information

Eviction attorneys in Cape Town  can answer your questions about rental housing rights, eviction process guide, and advise you on clear lease terms in landlord–tenant relationships, especially regarding improvements and rent increases. Contact one of our attorneys on 086 099 5146 or simon@sdlaw.co.za. Simon Dippenaar & Associates, Inc. is a law firm of specialist property lawyers in Cape Town, Johannesburg and Durban working hard to help landlords and tenants maintain healthy working relationships.

Oct 18
0

Court won’t allow eviction of ‘unlawful occupants’ at old age home

By | Appeal of an eviction order, Eviction news, PIE

Reprinted from TimesLIVE, by Rorisang Kgosana – 2024-10-17

The City of Johannesburg’s leave to appeal a high court judgment that denied an urgent eviction order to remove unlawful occupants from a retirement village was refused by the Johannesburg High Court as the law it was challenging was “unappealable”.

The 183-unit complex, aimed at SASSA beneficiaries older than 63 who entered into a lease agreement with the city, was now home to younger people and their children as over the years people would move in with their elderly relatives while some would remain in the unit even after the relative passed on, a resident told TimesLIVE.

The centre is now exposed to petty crime while facilities and units are dilapidated and remain unmaintained by the city.

In his judgment, judge Stuart Wilson, who had presided over the initial urgent matter, said the application was unappealable as it challenged section 5 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land (PIE) Act. The provision permits only urgent eviction when there is a “real and imminent danger of substantial injury to people or property” by an unlawful occupier.

“Orders under section 5 of PIE are interim in nature. They are granted or refused ‘pending the outcome of proceedings for a final eviction order’. Their interlocutory nature naturally raises the question of whether and to what extent decisions under section 5 are appealable,” said Wilson.

He said the decision to refuse a section 5 eviction order does not prevent the application from seeking relief under section 4 of the act, and the unlawful occupier will remain at the property until the proceedings are finalised.

“Accordingly, it seems to me that the refusal of relief under section 5 is not appealable. To hold otherwise would open the door to undesirable piecemeal litigation. Every refusal of relief under section 5 could, in principle, spawn an appeal, which would have to be addressed in parallel with, or before, the applicant’s entitlement to final relief under section 4 is considered.

“To permit the fractional disposal of eviction applications under PIE in this way would lengthen and complicate PIE proceedings, which are often already factually and legally complex matters, especially where poor and vulnerable people allege that they would face homelessness on eviction.”

He said the city had no reasonable prospect of convincing a court of an appeal that he was wrong in his judgment when he decided that section 5 requires it to link those it seeks to evict with “real and imminent danger of substantial injury to people or property”.

“Mr Nhutsve, who appeared for the city, advanced no alternative reading of section 5, which would permit the city to evict individuals or groups of people who had not been linked to a ‘real and imminent danger of substantial injury to people or property’. In the absence of such a reading, there can be no success on appeal,” said Wilson.

He said the city admits it wants to evict people who provide care to lawful residents of the complex, which those residents cannot do without.

It was on that basis that Wilson found that the relief sought would “endanger the safety and wellbeing of the very people the city says it wishes to protect”.

The city also raised issues of the hearing, arguing that it did not get a fair hearing as its counsel, Nhutsve, was not allowed to present his prepared speech to the court but was instead required to answer the court’s questions about whether the facts on the papers justified the relief sought.

“The city did not produce a transcript in support of its claims. Mr Nhutsve was accordingly constrained to advance his complaints about the fairness of the hearing from memory … I do not recognise Mr Nhutsve’s recollection of the hearing. The hearing lasted for about an hour, about 45 of which consisted of an exchange between me and Mr Nhutsve about the papers and the relief sought. The exchange was robust but respectful. I listened carefully to Mr Nhutsve’s submission, and had due regard to them in my judgment.”

Wilson said the city’s complaints about the way he conducted the hearing do not have a bearing on the correctness of his decision. In addition, Mr Nhutsve could not point out any submissions that he failed to make due to being interrupted.

“It was for these reasons that I refused the city’s application for leave to appeal.”

For further information

Simon Dippenaar & Associates, Inc. is a law firm of specialist eviction lawyers in Cape Town, Johannesburg and Durban. We help landlords and tenants maintain healthy working relationships. Contact one of our eviction attorneys on 086 099 5146 or simon@sdlaw.co.za if you need help with an urgent eviction matter.

Further reading:

Oct 07
0

Single mother faces eviction threat after 30 years in family home

By | Eviction news, Evictions, Tenants

Shanaaz Dyason, 40, claims that the City of Cape Town is attempting to remove her from the house she has lived in for the past 30 years.

Reprinted from iol.co.za, by Marsha Dean – 2024-10-05

The property, located on Fir Tree Road, originally belonged to her parents, who were forcefully removed by the Apartheid government and relocated to flats in Lavender Hill.

In 1994, the family was permitted to return to their home, and since then, Dyason has resided there with her three children and grandchild.

Dyason has faced ongoing issues regarding the transfer of the house into her name for the past 14 years.

“When my parents got divorced, they both moved out of the house and went their separate ways. My mother and I then went to the rent office, and we explained that I still live in the house. They said the tenancy would be transferred over to me as I was of age,” she explained.

However, in 2010, Dyason received an eviction order, which threatened to send her back to Lavender Hill. The City offered her a one-bedroom flat in Plumstead, but she refused.

Later, she was taken to court, where the judge ruled that she was not illegal and was indeed eligible for the house, instructing the City to sign a lease with her.

“I signed a lease, but a couple of years later, the house is still not in my name. It’s been 14 years, and until today, nothing has been resolved,” Dyason lamented.

“My water keeps getting cut off, and I have to pay over R3000 just to have it reconnected, which consumes all the SASSA money meant for my children. I am paying R2300 a month for electricity to cover housing debt. Since the lease is not in my name, I cannot sort anything out. Every month, I go to the municipality, and they say the hold-up is with the rent office.”

Desperately, she stated, “I am at my wits’ end and don’t know what to do anymore. I have already lost my job because every month I need to stay out to go to the rent office and submit new papers.”

In response, Councillor Carl Pophaim, the Mayco Member for Human Settlements, stated, “The City can confirm that no eviction application is underway as alleged.

“The tenancy was allocated to Shanaaz Dyason, and she signed a lease agreement with the City on 21 September 2023. We encourage Mrs Dyason to visit her nearest City housing office to complete all the documentation needed to take ownership of the property.”

However, the City claims that the property address matter has been resolved and that the resident should visit her housing office as soon as possible.

For further information

Simon Dippenaar & Associates, Inc. is a law firm of specialist eviction lawyers in Cape Town, Johannesburg and Durban. We help landlords and tenants maintain healthy working relationships. Contact one of our eviction attorneys on 086 099 5146 or simon@sdlaw.co.za if you need help with tenants’ rights or landlords’ responsibilities.

Further reading: