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When a property owner can evict a tenant

Tenants who refuse to move out of leased premises cannot be evicted by the owner of the property even if proper notice has been given. The property owner must first obtain a court order known as an ‘ejectment order’ and even then the eviction must be carried out by the sheriff.

If tenants believe there are no grounds for evicting them, the application for such an order can be contested. Any clause in a lease that says tenants may be ejected from the premises without a court order is illegal. Should a tenant be ejected in terms of such a clause the courts will order (without even considering the merits of the case) that the tenant be restored to occupation of the premises.

The exception is for property hired from the National Housing Commission and, in many cases, from local authorities.

The steps that need to be taken to evict tenants depend on whether or not the property is covered by rent control. Although this system is being phased out, there are still a few properties subject to rent control.

Premises not covered by rent control

A court will grant an eviction order only if tenants no longer have any right to be occupying the premises, because:

  • The lease has expired; or
  • The lease has been cancelled by either the tenant or the property owner due to a breach of the conditions of the lease by the other party.

The lease can be cancelled by the property owner only if the tenant commits a serious breach of its terms. Unless the lease states otherwise, the property owner may not cancel the lease simply because the tenant has failed to pay rent – the tenant must be notified that, if the money is not paid within a specified and reasonable time, the lease will be cancelled.

The property owner can also cancel the lease if the tenant causes serious damage to the property, or uses it for a purpose other than that agreed upon. In most cases the lease stipulates the circumstances under which cancellation can take place. In the absence of such clause or clauses, cancellation can still take place in terms of the common law for breach of contract.

Premises covered by rent control

The Rent Control Act, 1976, deals with the circumstances under which tenants can be ejected. As long as tenants continue to pay the rent within seven days of the due date, the court will not order eviction, even if the lease has expired. The only exceptions to this rule will arise if:

  • Tenants cause, or have caused, material damage to the leased premises;
  • Tenants cause a nuisance to occupiers of adjoining or neighbouring property;
  • Tenants are former employees and the property owner requires the premises for occupation by present employees;
  • The premises are required by the property owner for personal occupation, or for occupation by the parent or child of the property owner. In this case tenants must be given at least three months’ notice;
  • The property owner previously occupied the premises and the tenant agreed to vacate them by a date that has expired;
  • The premises are required for a restoration scheme or rebuilding, and six months’ notice has been given.

Property owners securing the eviction of a tenant on one of these grounds through misrepresentation will be guilty of an offence in terms of the Act and liable on conviction to a fine of up to R400. Property owners must give tenants written reasons for giving notice to vacate the premises and a copy of the notice must be given to the local rent board.

Issuing an eviction order

The procedure for obtaining a court ‘order for ejectment’ is the same whether or not the premises concerned fall under rent control. In most cases property owners apply to the magistrate’s court for the eviction of tenants. However, if the right of occupation is in dispute or if the property is valued at more than R100000, the proceedings will have to be brought in the Supreme Court.

Property owners start the procedure by issuing a summons, stipulating that they are seeking eviction orders and calling on the tenants to give notice of their intention to defend the action if they wish. If tenants decide not to defend the action, judgment will be given against them in their absence (a default judgment). If tenants decide to defend the action, property owners may nevertheless attempt to secure a summary judgment against them. This means that, unless the tenants can satisfy the court that they have a bona fide defence, judgment will be given against them.

All the tenants have to do at this stage is to convince the court that they do have a defence – the entire defence does not have to be put before the court. If the court accepts that the tenants have a defence, the case will proceed as usual, with the tenants having to file a plea and thereafter the matter will be set down for trial.

Once the order is made, ‘warrants of eviction’ are issued to the sheriff, in the case of a magistrate’s court action, authorising the removal of the tenants and their possessions from the leased premises. The sheriff will move the tenants’ possessions off the premises, in most cases onto the pavement. Evicted tenants have to pay their property owners’ costs in obtaining the eviction order.

In terms of the National Credit Act (NCA), lease of immovable property is not a credit agreement and therefore the NCA has limited applicability when regulating lease agreements. With regards to the Consumer Protection Act (CPA) and the regulations: the CPA and regulations came into effect on the 01/04/2011 – this includes the consumer’s right to give 20 business days notice to cancel a fixed term agreement. Although the consumer has the right cancel a fixed term agreement, the supplier may charge a reasonable penalty. The question as to whether a tenant has this right to cancel on 20 business days, is one which has been hotly debated – but to date there have been no exemptions granted.

Terminating your lease agreement

WHEN a tenant or landlord fails to perform on their contractual obligation, or performs late, the innocent or aggrieved party can cancel for breach. If the tenant cancels, say for the landlord’s failure to maintain the dwelling that placed the onus on the landlord to carry out repairs and maintenance, the lease is cancelled. The landlord’s refusal to acknowledge or accept the cancellation (for breach) does not have an effect on the lease that is terminated. Similarly, if the landlord cancels the lease for late payment of rental, the tenant’s acceptance or rejection of the cancellation is not required for the termination to come into existence. The lease is cancelled and the relationship between the parties is terminated.
The new Consumer Protection Act (CPA) allows tenants the right to give the landlord 20 days notice regardless of the lease agreement that was originally negotiated and to restrict the length of a property lease.In terms of the new law, lease agreements can run for a maximum of 24 months and, once that period has passed, will continue on a month-to-month basis unless a new lease was signed.
If the tenant is in breach but refuses or fails to vacate, and the landlord follows ejectmen WHEN a tenant or landlord fails to perform on their contractual obligation, or performs late, the innocentor aggrieved party can cancel for breach. If the tenant cancels, say for the landlord’s failure tomaintain the dwelling that placed the onus on the landlord to carry out repairs and maintenance, thelease is cancelled.The landlord’s refusal to acknowledge or accept the cancellation (for breach) does not have an effect onthe lease that is terminated.Similarly, if the landlord cancels the lease for latepayment of rental, the tenant’s acceptance orrejection of the cancellation is not required for thetermination to come into existence.
The lease is cancelled and the relationship betweenthe parties is terminated.The Rental Housing Act 50 of 1999(RHA), however,requires the tenant to be given a notice of rescission(the tenant must be allowed to remedy the breach) interms of an oral lease and in a written lease theremust be a cancellation clause, the grounds forcancellation must be stipulated and the allegedbreach must not constitute an unfair practice,[section 4(5) (j)].
Should the tenant fail to pay after such a notice isgiven, the landlord can cancel the lease agreement.A clause stating that the landlord has the right tocancel should the tenant fail to pay his or hermunicipal charges for the water and electricityconsumption on time, affords the landlord the rightto cancel.A tenant may have at least two options when alandlord cancels for breach: the tenant can ignore thecancellation and continue to occupy the dwelling, atenormous risk if he or she is in breach, or accept thathe or she has breached the lease contract and vacatethe dwelling.If the tenant is in breach but refuses or fails tovacate, and the landlord follows ejectment proceedings, the tenant would be liable for legal costs and ultimately removed by the sheriff on a writ of execution issued by a court at the landlord’s instruction. Should the tenant intend to challenge the landlord’s cancellation and can prove that the breach does not exist; the tenant must hold the landlord to the lease. In other words, the tenant must continue to occupy the dwelling and discharge his or her obligations. The tenant should notify the landlord that there is no breach.
Take, for example, the case where the landlord alleges that the tenant failed to pay rental on time, on the first day of the month. The landlord cancels the lease because cancellation for late payment is not an unfair practice and the lease contract contains a clause that states that the landlord can cancel for late payment. The tenant must show proof that the rental was paid on time and if payment was not delayed, the tenant can not lodge a complaint of unfair practice with the provincial Rental Housing Tribunal. The landlord or tenant does not have to cancel for breach and can opt to continue with the lease, or may choose to invoke the breach at a later stage, depending on the nature of the breach. It is advisable to seek legal advice when there is no clarity about cancellation for breach, because once the lease is properly cancelled, the contract is terminated. Should either party decide to continue with the lease after cancellation, there is a new lease (based on the terms and conditions of the lease that was terminated, (refer to section 5(5) of the RHA) because a party cannot withdraw a notice that cancels or terminates a lease.
Dr. Sayed Iqbal Mohamed, Chairperson, Organisation of Civic Rights;
Member of the KwaZulu Natal Rental Housing Tribunal and Council of Canadian Administrative Tribunals

Lease Terminology made easy

Assignment
The transfer of lease in its entirety from assignor to assignee

Assignor
The party disposing of their existing lease.

Assignee
The party taking over the lease.

Bank Guarantee
Documents supplied by lessees bank to guarantee an agreed amount of money in the event of the lessee forfeits the lease.

Building Insurance
The landlords insurance policy against damage/destruction of the property

Business rates
Local taxes charged to the occupier by central government.

Break Clause
Date at which a lease can be terminated having given prior written notice. This is agreed prior to completion and usually can be exercised by either landlord or tenant.

Building survey
Report carried out by qualified Chartered Surveyor advising on he structure and repair of the property.

Completion
Conclusion of legal formalities and legal transfer of ownership to the lessee/purchaser.

Contract
A legally binding document incorporating all the relevant terms of the negotiation

Covenants
The terms within the lease under which the lessee is legally bound

Deposit
A sum of money paid by the buyer on exchange of contracts.

Dilapidations
Repairing obligations to which the lessee must comply with at the end of the lease.

Exchange of contracts
The point at which the parties are legally committed to conclude the transaction with an agreed timescale.

Ground rent
The annual rent(normally nominal)charge levied by the freeholder to the long leaseholder.

Lease
Agreement entered into by landlord and tenant setting out the terms and obligations under which the tenant occupies the premises.

Legal Costs
Costs and fees paid to solicitors for dealing with legal documentation.

Lesser
The party offering a lease

Lessee
The party agreeing to take the lease

Listed building
A building that has been designated as being of special architectural or historic interest. Alteration to listed building are heavily censored.

Local authority search
Search undertaken by a solicitor to local council regarding any outstanding enforcement.

Peppercorn ground rent
A nominal rent paid to the freeholder.

Premium lease
Sum of money paid upon assignment for the benefit of the lease..

Purchaser
A person who is buying a property.

Rent
A sum of money paid by the tenant to landlord for beneficial occupation of the property. Normally charged quarterly in advance.

Rent Deposit
A sum lodged with the landlord which can be used in the event that lessee forfeits the lease.

Rent Review
A date at which the rent will be review. Normally this review is on an upward only basis at the anniversary of the third or fifth year.

Service charge
Charge levied by landlord to cover costs of all management services in relation to the running of the property.

Serviced Offices
Short term occupational solution where accommodation is let on a monthly renewable licence on a fully inclusive basis.

Sinking Fund
Collection of service charge money in advance. Normally created in anticipation of future major works to the building.

Stamp duty
A tax paid to the government by the purchaser. Amount paid on a sliding scale of between 1% and 4% depending on value of the property..

Subject to Contract
Words to indicate that the document does not form part of the legally binding contract.

Tenant
An occupier that is taking a lease from the landlord.

Tenant
A person who has temporary possession of a property.

Tenure
Definition of type of property either leasehold or freehold.

Title deeds
Documents showing the legal ownership of a property.

Under offer
The stage at which outline terms have been agreed prior to exchange of contracts.

Use
Restrictions on how the property can be used. I.e. retail, business or industrial.

Vendor
The party selling a property.

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