Property Talk

Lease agreements and the law

As a landlord do you know and understand what your rights and responsibilities are with respect to the rental property you may own and the tenant that you contract with As in most things in life, experience is a great teacher and once you have lived through an event you quickly understand the legal rights and obligations.

With a rental arrangement there are certain rights and obligations placed on the contracting parties. A tenant is obliged to pay rental on time and look after the property within reasonable limits. Will a tenant have the same attitude towards a property than an owner There are some outliers to be found but on the whole that would be a na*ve assumption.

Ownership is a very powerful motivator. A homeowner has a long-term outlook and time horizon and a tenant does not. Both parties act rationally given their respective departure points. Landlords who expect to receive a property back in exactly the same condition as when the tenant took occupation will be disappointed most of the time as this is simply not how life works. There is always going to be wear and tear and it is always going to come down to what is considered reasonable and what is unreasonable.

In the event of a defaulting tenant not paying rental as provided for in the lease agreement, there is a very specific and clearly defined process to follow by the landlord. The first step is the letter of demand with 20-business days notice to remedy the breach failing which the lease is cancelled.

If the tenant remains in arrears, the lease is cancelled and the matter is handed over to a specialist attorney for eviction. Often at this point a negotiated settlement and exit strategy is achieved. The eviction process does require a court order granting the eviction and then will require the Sheriff to execute the order.

There is a time factor involved and a specialist eviction lawyer would be key. In a recent case we were involved with we had a disgruntled Landlord take the law into their own hands by occupying the property by force with the tenant in residence, and thereby forcing an eviction. The Tenant reached out to the SAPS to intervene and although they were notified at 16:30 in the afternoon only arrived at 02:00 a.m. One of South Africa's top legal experts in the field commented on this situation as follows:

"The SAPS are obliged to remove the landlord and all threatening persons from the premises. In this regard, the SAPS have a constitutional obligation to take action in these circumstances, albeit that they may be of the view that this is a civil dispute. The simple fact of the matter is that this is not a civil dispute. The conduct of the landlord is criminal in nature and must be taken to task for it. I would suggest advising the tenant to attend at the police station to lay formal criminal charges, as the landlord's conduct, in addition to constituting trespassing and harassment, may be tantamount to an unlawful eviction of the tenant. The tenant has a lawful right to occupy the property, and until such time as that right is lawfully terminated, the tenant may not be forced out of the property."

In this particular case the SAPS did not uphold the law and failed to provide the remedy sought by the tenant. The landlord's strategy did in fact work, despite all legal commentary advising against it.

As they say possession is nine tenths of the law. This does not however imply that the landlord's behaviour was acceptable and a more aggressive tenant may well have taken the landlord to task. As professional rental agents we have an obligation to provide astute advise to both contracting parties, even at the risk of them ignoring our advice.