Real Estate Investor Magazine South Africa July/August 2019 | Page 27

A tenant’s guide
to evictions
W
hen renting a property, a question that may pop
into your mind is whether or not your landlord can
make you move out of the property. Master Practi-
tioner in real estate and principal at Just Property, Shaun du
Bois and Head of legal at TPN Credit Bureau, Peter Mennen,
provide some insight and answers to frequently asked ques-
tions regarding evictions.
WHAT PROCESS IS MY LANDLORD RE-
QUIRED TO FOLLOW IF HE WANTS TO EVICT
A TENANT?
According to Section 14 of the Consumer Protection Act
(CPA) a land lord can make you move out before the end of a
lease period if:
The tenant breaches the terms of the lease
If the tenant fails to remedy a breach within the required
terms
If the terms under which the landlord may terminate are
stipulate din the lease and do not constitute an unfair
practice, as per Section 4(5)(c) of the Rental Housing Act.
The Prevention of Illegal Eviction (PIE) Act, provides support
and protection to tenants against the unfair practise that could
be carried out by landlords. Landlords are also required to
follow the letter of the law. The legal landscape is complicated
and due diligence must be done before any evictions are made.
I HAVE DEFAULTED AND CANNOT PAY THE
RENT. I HAVE BEEN TOLD TO VACATE THE
PREMISES. WHEN I SIGNED MY LEASE,
I GAVE MY MOTHER’S ADDRESS AS AN
ALTERNATIVE RESIDENCE, BUT SHE PASSED
AWAY RECENTLY, AND I HAVE NOWHERE
ELSE TO GO. WHAT ARE MY OPTIONS?
If a tenant remains in a property after the lease agreement
has been lawfully cancelled, you become an ‘unlawful occupier’.
The term ‘squatter’s rights’ is sometimes referred to, but is not a
term associated with South African Law. The landlord will have
to follow due process and obtain an eviction order through
the Court to evict the tenant. The litigation process can be
contested, however, attorneys’ fees can be costly. Tenants are
advised to seek an amicable solution to the issue before the
matter ends up in the courtroom. In some cases, the owner
may well be lenient and allow tenants remain for another
month. If tenants are allowed to remain, they will remain liable
for rental and possibly contractual damages.
HOW MUCH WARNING IS AN OWNER
EXPECTED TO GIVE A TENANT IF THEY DO
NOT INTEND TO RENEW THE LEASE?
According to Section 14 of the CPA:
Tenants should be given between 40 -80 business days’
notice of the landlord’s intention to renew the lease
agreement for a further term. This can also be applied to
other contractual agreements outside of rentals.
In ideal circumstances it would be helpful to inform a
tenant in a timeous manner but circumstances do not
always permit more than the legal minimum.
LEGAL
IF A LANDLORD DECIDES TO SELL THE
PROPERTY BEFORE THE END OF THE LEASE,
WHAT OPTIONS DO THEY HAVE, AND WHAT
OPTIONS DO TENANTS HAVE?
This point is often misunderstood. Tenants often believe
that the principle of ‘Huur Gaat Voor Koop’ (the lease comes
before the sale) is always applicable and this is not the case.
As pointed out previously, under section 4 (5)(c) of the Rental
Housing Act, the landlord (seller) is legally entitled to include a
clause in the lease agreement that allows for the cancelation of
the lease when they intend to sell the property, but this must
happen before the sale has been agreed. This is a clause that
should be included in every lease agreement.
It is important to note that the rights of a bank that has
bonded the property will take precedence over a tenant’s
rights. If the landlord has not met his responsibilities to the
bank in terms of a mortgage agreement that was registered
before a lease with the tenant was signed, then the bank may
put the property on auction. The sheriff of the court must try
to sell the property with the lease in place but if this is not
possible, the sheriff will proceed to sell the property without
the lease in place.
IS IT LEGAL FOR A LANDLORD TO SELL
THEIR HOUSE WITHOUT OFFERING TO THE
TENANT FIRST?
Many tenants believe they have the first option to buy or a
right of first refusal over a property they are renting, however
for this to be the case, a clause providing such a right must
be put in writing. This clause must be included in the lease
agreement or in an addendum that is signed by both parties,
which is seldom done.
It is important to differentiate between a right of first refusal
and an option of purchase.
An option to purchase is a far stronger right for the
tenant and should be agreed before the lease is entered
into. This gives the tenant the right to purchase the
property at a pre-agreed amount during the subsistence
of the lease and should the tenant elect to exercise this
option. If this is applied, the landlord would be obligated
to sell the property on those terms.
A right of refusal means that if during the duration of
the lease, a landlord elects to sell the property and is
ready to accept an offer on said property – the landlord
must first offer the property to the tenant (at an equal
or higher purchase price than the one already offered).
If the tenant does not exercise this right of first refusal,
the landlord will be entitled to sell to the third party
purchaser.
It is rare that these clauses are included in a lease. Despite
this, it is always good practice to offer the tenant the
opportunity to purchase the property in the event that the
property is placed on the market as it would make for a simpler
process that would incur the least disruption.
RESOURCES Just Property
SA Real Estate Investor Magazine JULY/AUGUST 2019
25