Q & A
Property Advice
SIMON DIPPENAAR
Founder & Managing Partner , Simon Dippenaar & Associates
QI rented out my property but now wish to return and take up occupancy . Am I within my rights as the property owner to remove the tenant , and what do I do if they refuse to vacate ?”
A
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 .
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4 SEPTEMBER / OCTOBER 2018 SA Real Estate Investor Magazine