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lease agreement Archives | Eviction Lawyers South Africa

Month-to-month lease – how do you cancel?

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

Month-to-month leases are governed slightly differently from fixed-term leases

There are multiple reasons why a tenant might have a month-to-month lease. The most common scenario is when the fixed-term lease has expired and the tenant remains in the property. According to the Rental Housing Act, if no renewal has been requested by either party and no notice to quit the premises given by the landlord, the lease automatically rolls over into a month-to-month lease on the same terms and conditions as the expired fixed-term lease. The landlord and tenant may have had a conversation and agreed this arrangement verbally, possibly because the tenant is awaiting a moving-in date to a new home or is unsure of future plans. They may have applied for a job in another town and are waiting on the outcome. In these situations, a new fixed-term lease might not be appropriate.

The converse may also apply: a tenant is new to the area, having relocated for work, and is looking for a home to purchase or a suitable long-term rental, and in the short term just needs temporary accommodation, but cannot be certain of the duration. In this case, a month-to-month lease would be a useful option.

What then happens when either party wishes to terminate the agreement? Section 14 of the Consumer Protection Act (CPA), normally takes precedence over the Rental Housing Act, but does not apply to month-to-month leases.

What the Rental Housing Act says

As stated above, if the tenant occupies the property after expiry of the lease, the tenancy agreement continues as it was, except that the duration of the lease becomes one month. In other words it is now a month-to-month lease. In this case, the notice period for cancellation by either party is one month. However, this does not apply to cancellation due to breach of the lease agreement (e.g. non-payment of rent). Remember, even if no written lease is drawn up detailing the month-to-month arrangement, the terms and conditions of the earlier lease still apply, and therefore any breach of those conditions is legitimate grounds for a landlord to cancel the lease.

What the CPA says

The CPA, more specifically Section 14 of the CPA, requires the landlord to give 20 business days’ notice of cancellation of the lease (effectively a calendar month). But this applies only to fixed-term leases. A month-to-month lease is exempt from Section 14. However, if the landlord is giving notice to cancel due to a breach, then Section 14 does apply, and the landlord must give 20 business days’ notice to remedy the breach. Only if the breach is not rectified in that time period may the landlord begin the eviction process.

If the tenant wishes to cancel the lease, for example if they have found that dream home they were searching for, they must give 20 business days’ notice (one calendar month) to the landlord. If a tenant cancels the lease without giving the requisite notice, they are in breach of the CPA and of the common law. In this instance the landlord may either:

  • Accept the cancellation, but hold the tenant liable for the rent until a new tenant is found; or
  • Refuse to accept the cancellation and compel the tenant to honour the lease.

With a month-to-month lease the outstanding lease period can’t be more than one month.

Let eviction attorneys help

SD Law is a firm of eviction lawyers who know rental housing law inside and out. We look after the interests of both landlords and tenants. Our priority is upholding the law and ensuring everyone’s rights are protected. If you have a question regarding your month-to-month lease, or any other aspect of rental housing legislation, contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za for a confidential discussion.

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)

 

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Original article taken from SDLaw.co.za

4 tips to help ensure your rent increase is fair

By | Rent

Rent-increase-caption

In South Africa, there are no regulations prescribing how much your landlord can increase your rent by, unless there is an escalation clause in your lease. For many years, people just tended to accept that rent would go up by 10%-12% every year and either tried to budget for that or looked around for somewhere else to live. However, times are changing and people are feeling the pinch of the recession that hit a couple of years ago. Another consideration is that while you may not be able to afford the rent increase, moving can also be an expensive endeavour, even if you do manage to find somewhere cheaper to live.

More and more, tenants are trying to negotiate any rent increases with their landlord. When looking at hikes in prices for petrol, electricity and food, a blanket 10% increase in rent seems very high. One of the standard negotiation tactics is to ask your landlord for an inflation-related increase. This is quite fair in many respects, but doesn’t always look after all of the landlord’s interests.

If you wish to negotiate your rent increase with your landlord, it’s important to look at it from their side of things too. Most landlords are only trying to cover their costs.

Aspects to bear in mind when negotiating a rent increase

  1. First check your lease carefully – Most leases include an escalation clause. This will tell you what the expected annual increase will be, as well as terms for contract renewal. Remember, even if there is an escalation clause, it doesn’t mean that you can’t renegotiate the rent increase with your landlord.
  1. Look at rates, taxes and other costs to your landlord – If you want your landlord to be open to your negotiations, it’s a good idea to know what is happening with all of the extra expenses that they have to pay.
  1. Judge the popularity of the neighbourhood – If the area that you’re living in is very popular, then you may have to be careful with your negotiations. It’s best to avoid a situation where the landlord can easily replace you with someone who is willing to pay the higher rent.
  1. Remind your landlord how long you’ve been living there – In many cases, longstanding tenants who have proven to be reliable, have a good bargaining chip when it comes to negotiations.

If you’re having trouble negotiating a fair rental increase with your landlord, it might be time to get a professional in to help with mediation. Contact Simon today for legal representation in your property dispute.

Simon Dippenaar & Associates Inc. is a law firm in Cape Town and Gauteng with eviction lawyers and attorneys specialising in eviction law.

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