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lease agreement Archives | Eviction Lawyers South Africa

How to evict a tenant without a lease

By | Evictions, Lease Agreement

Tenants have rights with or without a written lease

No lease? No change to the eviction process. Eviction lawyers

Your arrangement with your tenant is not working out, and you’ve reached the point where you are considering eviction. But you don’t have a written lease agreement and you’re not sure how to evict a tenant without a lease. What now?

Firstly, you cannot take the law into your own hands. You must follow the correct process if the eviction is to be deemed lawful. Whether or not there is a written lease agreement, if a landlord allows someone to reside on a property and accepts rent, that is regarded as a de facto lease and is binding.

This scenario will soon change, however. The as yet un-gazetted Rental Housing Amendment Act 35 of 2014 compels landlords to have a written lease agreement in place and is just one of the regulations that will further protect the rights of tenants and reinforce the obligations of landlords. 

Landlords and tenants will have six months to comply with the provisions of the Act once the new legislation comes into effect. All new lease agreements must be in writing and verbal agreements will no longer be binding.

Allow time to remedy a breach of contract 

If the tenant is in breach of a rental agreement, the landlord must notify the tenant in writing and allow them to remedy the situation. This might happen if there is excessive noise, there are pets on the property without permission, or rent is in arrears. Unless specified in the lease agreement, a tenant has 20 working days to rectify the breach in accordance with the Consumer Protection Act (CPA). In the case of a verbal agreement, or if the lease has expired but the tenant still lives on the property with the landlord’s permission on a month-to-month basis, the landlord must afford the tenant one calendar month’s notice to make good the situation.

If the tenant fails to repair the breach within the specified time period and the matter cannot be settled, the next step is for the landlord to issue the tenant with a letter cancelling the lease. With a bit of luck, the troublesome tenant will vacate the property at the end of the notice period. However, if the notice of cancellation is ignored and the tenant refuses to leave, the landlord may have no choice but to apply to the court for an eviction order. 

The steps to eviction with or without a written lease

An eviction order will be served 14 days prior to the court hearing and, if the tenant is unable to present a valid defence at the hearing, a warrant of eviction will be issued allowing the sheriff to remove the tenant’s possessions from the property. If the tenant does present a valid defence at the hearing, a trial date will then be set.

Removing a recalcitrant tenant can be extremely frustrating, but failure to observe legal processes will result in an unlawful eviction and possible criminal action. 

The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 1998 (PIE) sets out strict procedures on how to properly evict unlawful occupiers from residential properties, while prohibiting illegal evictions. It is not permissible to change the locks or turn off the water and electricity. A landlord who does not comply with PIE could face a fine or up to two years imprisonment, so it’s best to hire an eviction lawyer at this stage to ensure the correct procedure is observed.

Keep on the right side of the law

Tenants or landlords may decide to terminate a lease agreement for many reasons, but, whatever the grounds, both parties must act within the law. Simon Dippenaar and Associates are expert eviction lawyers who will ensure the correct procedures are followed every step of the way. We will assist with eviction notices and court appearances to secure a satisfactory outcome. Call us on 086 099 5146 or email sdippenaar@sdlaw.co.za.

Further reading:

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