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landlord and occupier rights Archives | Page 2 of 10 | Eviction Lawyers South Africa

Apr 02
0
Commercial lease

Misrepresentation in commercial contracts (including your lease)

By | Lease Agreement

What to do if you’ve been led up the garden path

Before any contract is signed, there are usually discussions about the arrangement or agreement being made between two parties. The purpose of the contract is to capture the details and formalise them, so everyone understands their responsibilities and expectations. Signing the contract is often seen as a formality, especially if the negotiations have been amicable and the two parties seem to have a good rapport. For that reason, it may not be scrutinised as carefully as it should be. What happens if you have an understanding about the conditions of a contract, for example a lease, and you later discover the terms you thought applied are not actually included in the contract?

For example, perhaps you enter into a lease agreement believing the furniture is included in the rental amount. After six months, the landlord demands the furniture back. You assume you are covered by the lease agreement but, when you review it, you realise there is no explicit clause confirming the inclusion of the furniture. What can you do?

False or misleading statements

The lease is not the watertight “get out of jail card” the landlord may think it is. A landlord may not rely on a lease clause limiting their liability for representations if they have made false or misleading statements to a prospective tenant before entering into a lease. This is known as misrepresentation. Whether fraudulent, negligent or innocent, misrepresentation arises when a party has been tempted or lured into entering into a contract by the other party’s misrepresentation of facts. If your initial discussions led you to believe the furniture was included in the rental, the landlord is guilty of misrepresenting the reality. However, it’s equally possible that you misunderstood the landlord, who was in fact acting in good faith.

The primary issue is the disparity between the written lease agreement and the actual intentions of the parties. Determining the true intentions can be murky and requires looking beyond the written agreement to the actions of the parties. 

Material misrepresentation

To pursue a claim for damages, you must establish that misrepresentations were made when you entered into the lease agreement. In contract law, honesty and transparency are critical principles. A key concept in contractual agreements is “material misrepresentation”. Misrepresentation is defined in law as “an untrue statement of representation concerning an existing fact or state of affairs which is made by one party to the contract with the aim, and result, of inducing the other party into concluding the contract.” The misrepresentation may be about the qualities or characteristics of the subject of the contract.

Misrepresentation may render a contract voidable if: 

  • A misrepresentation has been made
  • The misrepresentation was made by one contracting party to another
  • The misrepresentation was unlawful
  • The misrepresentation induced the parties to enter into the contract

Types of misrepresentation

There are three types of misrepresentation: 

  • Intentional misrepresentation – a person makes a statement, which is known to be false and without regard for whether it is true or not, with the intent to deceive. The deceived party may claim damages and decide whether or not to uphold or rescind the contract
  • Negligent misrepresentation – a person makes a statement they believe to be true but they fail to exercise reasonable care or competence to communicate information that is true or correct. The party aggrieved party may have a claim for damages or may choose to rescind the contract
  • Innocent misrepresentation – a person makes a statement neither fraudulently or negligently. In these circumstances the aggrieved party will not have a claim for damages but may have the choice to uphold or rescind the contract

Remedial action 

Someone who has been misled into contracting by the misrepresentation of the other party, as in the example of the lease and the furniture, has a number of options to remedy the situation: 

  • They may seek to have the contract rescinded or set aside, essentially undoing the agreement and returning the parties to the position they were in before the contract was entered into. In the case of a lease agreement where the tenant has taken occupancy of the property and it is their home, this could be tricky.
  • Where the innocent party suffered financial loss due to the misrepresentation, they may seek monetary compensation from the party responsible for the misrepresentation. In our example, there may not be a literal financial loss, but it could be argued that returning the furniture would place the tenant in the position of having to make a financial outlay to replace it, and monetary compensation may be helpful.
  • In cases where damages are inadequate, the court may order specific actions, compelling the party responsible for the misrepresentation to fulfill their contractual obligations as originally agreed upon. In our example, this would mean leaving the furniture in the property for use by the tenant (which would probably be the simplest and most effective solution).

Burden of proof

For a misrepresentation claim to succeed, the following elements must be proven: 

  • The statement or conduct of the one party was false and was made either intentionally or negligently
  • The misrepresentation induced the other party into entering into the agreement
  • The misrepresented fact was significant enough that it influenced the innocent party’s decision to enter the contract
  • The innocent party reasonably relied on the misrepresentation when entering into the contract

In our example, it would be necessary to establish the true intentions of the parties upon entering into the lease agreement. If it could be established that the true intention was to provide the furniture and the landlord is now refusing to do so, there could be a possible claim of misrepresentation. 

For further information

We’ve used this simple example to illustrate the concept of misrepresentation and what to do about it. In our experience, misrepresentation can happen by either landlord or tenant. It is also a salient reminder to scrutinise a lease agreement or any contract before signing it! 

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. If you think you are a victim of misrepresentation and you are disadvantaged or distressed by it, contact one of our attorneys on 086 099 5146 or simon@sdlaw.co.za for a confidential discussion today. We’ll help you put things right.

Further reading:

Jul 31
0

Illegal eviction practices – understanding and combating them

By | Evictions, Tenants

Know your rights as a tenant

Feeling at the mercy of commercial landlords while searching for rental properties? You’re not alone. Especially in the fiercely competitive rental markets like the Western Cape, landlords may take undue advantage. However, as a tenant, you must remember that the law offers considerable protection. Knowing your rights and the responsibilities of the landlords can safeguard you from illegal eviction practices. Tenants have rights, and landlords have responsibilities (though they also have rights, and tenants also have responsibilities). Of course, ultimately the party with ownership status has more influence over the fate of the property than the party that rents it. But that does not mean a landlord can take the law into their own hands. The vast majority of landlords are honest and respectful of their tenants. After all, it’s a commercial relationship that works best when all parties are satisfied with their interaction. However, it does happen that a landlord occasionally ignores legal requirements and abuses their position. If you find yourself facing an illegal eviction, what are your rights and what can you do about it?

For a concise current guide to what counts as an illegal eviction in South Africa, what landlords may not do, and what to do immediately if you are locked out or forced from the property, see our practical illegal-eviction guide.

Quick answer: what to do if you are locked out or forced out

If a landlord changes the locks, removes belongings, cuts essential services, blocks access, or uses threats to force a tenant out without a court order, treat it as urgent. Keep evidence, avoid retaliating, get legal advice quickly, and identify the correct route: if possession or access has already been taken, an urgent mandament van spolie application may be needed to restore access; if the issue is an unfair rental-housing practice, harassment, intimidation, or a deposit/service dispute, the Rental Housing Tribunal may also be relevant. A Tribunal complaint is not a substitute for urgent court relief where a tenant has been locked out of the home.

What constitutes illegal eviction in South Africa?

Tenants may only be evicted from a property by means of a court order. Any eviction other than one authorised by a court is illegal.

The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act No 19 of 1998 (PIE) contains specific regulations that govern the eviction process. Any action that contravenes these regulations is deemed to be an illegal eviction and the courts take this very seriously. But what might an illegal eviction look like? What are some of the things a landlord might do that are in breach of the law?

Common illegal eviction tactics used by landlords

All of the activities below are illegal, but unfortunately they do occur. If you experience any of these behaviours, keep a record of the incident and the date and time. We’ll say more about how to deal with these practices below.

Lockouts: Landlords may not change locks, deny tenants access to their homes or unlawfully dispossess them from the property to force them out. This is illegal and is a violation of the tenant’s rights to the property. The tenant’s rights continue to be in force even if they are in arrears with rental payments.

Utility disconnections: Cutting off essential services like water, electricity, or gas is strictly prohibited without following the proper legal channels.

Verbal or threatening behaviour: A landlord cannot verbally or physically force a tenant to leave their home without obtaining a court order for eviction.

Harassment: Continually disturbing or harassing tenants with the intention of making their living conditions unbearable is illegal and tenants have the right to seek a protection order against their landlord if this happens.

Seeking a legal solution: the spoliation order

If any of these actions lead to dispossession, i.e., being removed from the home, depending on the circumstances tenants may bring an urgent application to court and ask for a “spoliation order”. Spoliation means “the wrongful deprivation of another’s right of possession”. If the Magistrate is satisfied that the tenant has been unlawfully dispossessed without the landlord following the necessary legal procedure, an order will be granted for possession to be reinstated.

If the landlord attempts to evict a tenant illegally, they could face a heavy fine or be required to pay damages to the tenant. In the worst case scenario the landlord could potentially wind up in jail, facing serious criminal charges.

Your rights as a tenant – safeguards against illegal eviction

The provisions of the Rental Housing Act are clear on the rights of tenants. The tenant’s rights against the landlord include the right not to have:

  • Their person or home searched
  • Their property searched
  • Their possessions seized, unless the landlord has first obtained an order of court

A written lease cancellation or eviction notice must first be served by the sheriff on the tenant. This notice has to offer the tenant a minimum of one month to vacate the property. A court date is then set and a deadline given for filing an opposing affidavit, if the tenant wants to oppose the eviction. A landlord cannot evict a tenant without going through this correct procedure.

Dealing with illegal eviction practices – a step-by-step guide

If you are being harassed or victimised by your landlord, you are not helpless. Legal recourse is available. But you must not respond with equally unlawful behaviour. Instead, stay calm and be methodical in your approach.

Document everything: Keep a record of all communication and incidents related to the eviction, including notices received, dates, times, and any evidence of harassment or illegal actions.

Seek legal advice: Consult with a qualified attorney to understand your rights and the legal avenues available to you.

Lodge a complaint: Report any illegal eviction practices to the Rental Housing Tribunal, Department of Human Settlements, or your local municipality. They can provide guidance and resolve disputes.

Court intervention: If none of the above gives satisfactory results, consider applying for an urgent interdict at your local court to protect your rights and prevent the eviction until a proper court hearing takes place.

Illegal eviction practices are a violation of tenant rights and can cause significant distress. Don’t panic. Know your rights and understand the legal process. This will enable you to deal effectively with the situation.

For further information

If you are being subjected to illegal eviction practices, our specialist eviction lawyers can help. Simon Dippenaar & Associates, Inc. helps landlords and tenants maintain healthy working relationships but, when necessary, we can assist with eviction, ensuring it is effected legally and ethically. Contact one of our eviction attorneys on 086 099 5146 or simon@sdlaw.co.za if you think you are being treated unfairly or unlawfully by your landlord.

Further reading:

Jul 10
1
Rights responsibilities in rental housing

Tenants’ rights and landlords’ responsibilities

By | Eviction notice, Evictions, Lease Agreement, PIE, Rental Housing Act

What South African law says about eviction

The relationship between property owner and occupier should be a happy one. After all, it offers a reciprocal and mutual benefit. One earns a passive income from an owned asset, and the other enjoys a home to live in, without the weight of responsibility that come with property ownership. Unfortunately, the relationship is not always friendly. Friction can emerge as a result of unpleasant behaviour by either party. Landlords can be unresponsive or unreasonable. Tenants can be disrespectful or negligent. South African law contains multiple pieces of legislation governing rental housing, and both landlords and tenants are accorded rights that protect them. They are also assigned responsibilities they must uphold. But the balance tends to lean towards tenants’ rights and landlords’ responsibilities. In this article we examine them both.

Learn more: read our Complete 2025 Guide to Evictions in South Africa.

PIE Act key eviction rules

PIE Act summary: PIE is the South African law that controls residential eviction from land or a home. It protects occupiers from self-help removal and requires a court to consider the relevant circumstances before granting an eviction order. In practical terms, a landlord must use the court process, give the required notice, prove the right to evict, and wait for the sheriff to enforce a valid eviction order if the occupier does not leave voluntarily.

The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) regulates how an owner or person in charge may evict an unlawful occupier. It does not give landlords permission to use self-help. It creates a court process that must be followed before a person is removed from a home.

Who is an unlawful occupier?
Under PIE, an unlawful occupier is someone who occupies land without the express or tacit consent of the owner or person in charge, or without another right in law to occupy it. The definition excludes occupiers who fall under ESTA and certain informal land-rights protections.

What does section 4 require?
Section 4 applies when an owner or person in charge applies to evict an unlawful occupier. The occupier and the municipality must receive written and effective notice of the proceedings at least 14 days before the hearing. The notice must tell the occupier about the case, the hearing date, the right to defend the matter, and the right to apply for legal aid where necessary.

What changes after six months’ occupation?
PIE distinguishes between occupation for less than six months and occupation for more than six months when the proceedings start. In both situations the court must decide whether eviction is just and equitable. For occupation longer than six months, the court must also consider whether land or accommodation has been made available, or can reasonably be made available, by a municipality, organ of state, or another land owner, except in the sale-in-execution context dealt with in the Act.

What does section 8 prohibit?
Section 8 makes the no-self-help rule explicit: no person may evict an unlawful occupier except on the authority of an order of a competent court. Changing locks, cutting utilities, intimidation, or physical removal without a court order may expose the landlord to serious legal consequences. For a practical guide, see our page on illegal eviction in South Africa.

Urgent eviction under PIE section 5: section 5 allows urgent proceedings only where the court is satisfied that there is real and imminent danger of substantial injury or damage, the hardship balance favours urgent relief, and there is no other effective remedy. It is not a shortcut for ordinary eviction delays. For the practical route, see our guide to urgent eviction orders.

Understanding tenant’s rights

The South African Constitution gives people certain inalienable rights. How do they apply to tenants?

Right to fair treatment in law

A landlord cannot evict a tenant without going through the correct legal procedures. Unfortunately, some landlords take it upon themselves to involve municipal law enforcement to evict tenants. The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act No 19 of 1998 (PIE) is a key piece of legislation in South Africa that regulates the process of eviction. It was enacted to protect both property owners and tenants, ensuring that evictions are carried out in a fair and lawful manner.

The courts take eviction law very seriously. Failure to follow the correct process could result in a heavy fine for the landlord, as well as damages payable to the tenant. In the worst case scenario, the landlord could end up in jail, facing serious criminal charges.

Right to adequate housing 

The Constitution recognises the right to adequate housing as a basic human right. No one’s property may be taken away from them and no one may be evicted from their home without a court order. This means a landlord must apply to court before evicting a tenant from their property.

The court must consider all relevant circumstances before ordering eviction. Where an unlawful occupier has been in occupation for more than six months when proceedings begin, section 4(7) of PIE requires the court to consider, among other factors, whether land or accommodation has been made available or can reasonably be made available by a municipality, organ of state, or another land owner. This is a contextual enquiry, not a simple rule that every eviction requires alternative accommodation to have been secured in advance.

Right to legal representation

The law gives a tenant the right to defend against an illegal eviction if a landlord forces them to leave the premises without appropriate notice. Ownership does not give a landlord the right to evict a tenant without following the correct procedure.

Tenants have the right to legal representation during the eviction process. If a tenant cannot afford a lawyer, they can seek assistance from Legal Aid South Africa or a pro bono attorney. Further information regarding Legal Aid is available online or from the Registrar of the High Court.

Understanding landlord responsibilities

Landlords have a set of responsibilities towards their tenants. Legislation is motivated in part by past abuses and rental housing law ensures tenants cannot be exploited or unfairly treated.

General obligations

The landlord has the responsibility to:

  • Deliver the property to the tenant for their use and enjoyment. The landlord must provide everything necessary for the tenant to use and enjoy the property, for example, keys, remotes, etc. 
  • Maintain the property in good order and condition for the duration of the lease agreement. Correspondingly, the tenant should report any defects in the property to the landlord.
  • Ensure the tenant’s undisturbed use and enjoyment of the property, i.e., the tenant’s privacy.

Following legal procedures

The PIE Act clearly defines the procedure the landlord must follow to evict a tenant. A property owner must not take the law into their own hands, for example by cutting the electricity or water supply to the property or intimidating the unlawful occupier into vacating the property. A landlord can only consider eviction in the event of a breach of the lease agreement which the tenant has failed to rectify. If the lease is coming to its natural end and the landlord does not wish to renew it, they simply give the tenant notice to quit per the terms of the lease agreement. This is not eviction. However, if the tenant breaches the agreement, the steps in the eviction procedure are:

1. Notify the tenant of the breach.

  • The landlord must issue a warning to the tenant in writing, giving them a specified amount of time to remedy the breach. This time frame is determined by the terms of the lease. Unless otherwise specified, it is 20 working days, in accordance with the Consumer Protection Act (CPA). The CPA is designed to protect consumers in various transactions, including rental agreements. It sets out specific requirements for notice periods and other aspects of the landlord–tenant relationship. If there is no written lease, the landlord must give a full calendar month’s notice. If the tenant rectifies the breach, the matter is finished.
  • If the breach is not remedied within the designated time, the landlord notifies the occupier in writing that the lease is to be cancelled and gives the occupier reasonable time to vacate the property.
  • The notice period required to cancel the lease, like the time allowed to remedy the breach, is dictated by the lease. If no time frame is stipulated, or in the case of a verbal lease, a minimum of one calendar month’s notice is required (end of the current month to the end of the following month).

2. Apply for a court order.

  • If the occupier fails or refuses to vacate the property, despite being given adequate notice, the landlord may approach the court to start the eviction procedure.
  • The court provides the landlord with a date and time for the eviction hearing.

3. Serve notice on the tenant 

  • Written notice of the eviction hearing must be personally served on the unlawful occupier of the property, as well as on the local municipality. 
  • This notice must be served by the sheriff at least 14 days before the eviction hearing in court. 
  • The notice must indicate the date and time of the eviction hearing, the circumstances surrounding the eviction, and the unlawful occupier’s right defend themselves.

4. The hearing. 

  • At the eviction hearing the court will hear the matter and make a decision whether or not to grant the eviction order. The occupier may defend the eviction. The court will consider factors such as children, elderly or disabled tenants, and woman-headed households, and the availability of suitable alternative accommodation when granting the eviction order. In certain circumstances an order may be granted but “stayed” – delayed – to give the occupier more time to find another home.

Respecting tenant’s rights

Landlords must respect the rights of tenants during the eviction process. Harassment or intimidation of tenants is not permitted.

The landlord is not allowed to enter the tenant’s premises or remove doors to speed up the eviction process. The provisions of the Rental Housing Act are clear on the rights of tenants. The tenant’s rights include the right not to have:

  • Their person or home searched
  • Their property searched
  • Their possessions seized, except by court order

Balancing rights and responsibilities

Evictions are complex processes that require a careful balance between the rights of tenants and the responsibilities of landlords. It is also important to be mindful of ethical considerations, as South Africa has an acute housing shortage at present and a fragile economy. It is always better to try to resolve disputes through negotiation and, if necessary, mediation. Seeking an eviction order through the courts should be the last resort. 

Learn more: read our Complete 2025 Guide to Evictions in South Africa.

Source note

This page refers to section 26(3) of the Constitution and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998. Key provisions include PIE’s definition of an unlawful occupier, section 4 on eviction proceedings by an owner or person in charge, and section 8 on offences and the prohibition against eviction without a competent court order.

PIE procedure is fact-sensitive. The correct route may differ where ESTA, informal land-rights legislation, a still-valid lease, urgent proceedings, or mixed residential and commercial occupation is involved. Get legal advice before serving notices or taking steps to remove an occupier.

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: