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Ask a lawyer – My landlord wants to move back in

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We received a reader’s question on a different slant to the story we did on Huur Gaat Voor Koop. Sonja du Toit, director at MC van der Berg Attorneys Incorporated, weighs in.

Q

Hi, the story explains the “the landlord intends to sell the premises” bit, but not the “the landlord intends to move into the premises” bit. We are in a situation where the landlord decided to move back earlier. We have signed a fixed, 12-month contract/lease agreement, but the owner decided that he wants to move back in after eight months of the contract being in full swing.

I am being told by the agent that this is allowed, simply because of this: “the landlord intends to move into the premises” bit in the contract. We have stuck to our end of the deal, no breach! I’m just wondering if this is okay for him to do? Is this in line with the Consumer Protection Act? The funny thing is, we are also being told that we’re lucky not to pay a penalty fee for leaving earlier! How on earth is this our problem? Is this even legal? If anything, I would like him to pay for my moving/relocation costs.

Additionally, the agent set up the contract to have all interest on the deposit go to herself (agent) and the EAAB. However, in another clause (same contract) it explicitly states that this will go “to the tenant”. Thoughts? This is not in line with how things should be as far as I understand.

Finally, the agent mentioned an estimated charge of R500 that they’ll be deducting off our deposit (for service charges: water and such). Now, this deposit was made back prior to us moving out as we needed this to cover the deposit on our new rental. They were all too happy to do this for us. The thing is, when the deposit was made, they had in fact deducted double this amount which was NOT what I agreed upon. Furthermore, this was only to be paid by me on presentation of an invoice, NOT an estimated invoice. Is this legal? Any help/advice is appreciated. Thanks!

A

Sonja du Toit, director at MC van der Berg Incorporated.

Sonja du Toit, director at MC van der Berg Incorporated.

The “huur gaat voor koop” can only be relied on where there is a new owner who bought the property from the original owner and is then bound by a short- or long-term lease that protects the tenant. The rights and obligations in terms of a written or verbal lease agreement are automatically ceded from the seller to the purchaser, and the new owner is bound by the terms of the lease agreement.

In terms of the Consumer Protection Act (CPA) a tenant will be protected for the full term of the lease if there is no material breach by the tenant. The landlord may only cancel the contract for a material breach of contract, after giving the tenant 20 business days’ notice of the breach and the opportunity to remedy the breach. In this case the landlord will be in breach if he decides to cancel the lease and therefore disturbs the tenant’s undisturbed use and enjoyment of the property. The remedies the tenant has at his disposal are:

  1. Firstly, specific performance can be claimed where a party to a contract has a duty as stipulated in the contract and fails to comply with the duty. In this case the landlord will be compelled to execute his duties in accordance with the contract, for example giving the tenant undisturbed use and enjoyment for the full term of the lease.
  2. Secondly, the tenant will be entitled to claim for damages for losses he has suffered as a result of the landlord’s breach of contract.

Most often the landlord will not willingly pay damages and a litigation process will be initiated to claim the damages. Alternatively, the tenant can approach the Rental Housing Tribunal.

With regards to the interest on the deposit, the Estate Agency Affairs Act stipulates that interest earned on the deposit invested in the agent’s trust account has to go to the EEAB fund, unless the mandate stipulates that the interest is to accrue for the tenant. When two clauses in the same contract contradict each other it is a matter of interpretation. There is thus no clear-cut answer to this question.


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With regards to the estimated charge of R500 deducted from the deposit, an invoice for services rendered should be supplied; alternatively, it must be agreed on in the rental agreement.


Do you have a burning legal query? Email david@hometimes and we’ll be sure to help you get it sorted out


Words: Sonja du Toit, director at MC van der Berg Incorporated

Trusted Tenant - #TenantPower

david.steynberg@gmail.com

David A Steynberg, managing editor and director of HomeTimes, has more than 10 years of experience as both a journalist and editor, having headed up Business Day’s HomeFront supplement, SAPOA’s range of four printed titles, digimags Asset in Africa and the South African Planning Institute’s official title, Planning Africa, as well as B2B titles, Building Africa and Water, Sewage & Effluent magazines. He began his career at Farmer’s Weekly magazine before moving on to People Magazine where he was awarded two Excellence Awards for Best Real Life feature as well as Writer of the Year runner-up. He is also a past fellow of the International Women’s Media Foundation.

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1 COMMENT
  • Suzanne 7th June 2018

    Hi David

    Three years ago we had a tenant move I to our property. There was no signed lease agreement. She was a single mother with one teenage daughter. She sometimes defaulted on payment of rent but we excused her. Then suddenly last year July she passed away. This happened 5 days before she was due to pay the rent. 

    We felt really bad for her family and told them they didn’t need to pay the rent. We gave them two weeks to move her belongings from the property. After the end of two weeks her mother phoned us and asked if her other daughter could please rent the property from us as theu had nowhere to move her deceased daughters belongings. We met with the family, they seemed nice enough. Bother her and her husband were working, they also had a son who was working and the other two children that were still in school were going to live with their grandmother. 

    We stupidly agreed to them living on our property and again there was no lease agreement. They moved in on the 1st on September on a pay to stay basis. There no was advance rent as again we felt sorry for them as they said the funeral had cost them all so much. The first month they moved in they defaulted on payment. After much phone calls half of which they didn’t answer they paid us on the 10th of that month. The following month they paid on time and again defaulted the following month.

    This continued up until January where electricity was cut due to non payment. We only discovered this when we went to enquire if the account was being paid. We contacted the neighbours and found out that there was still electricity in the house. We then discovered they had illegally connected the electricity. We contacted the municipality and a hard disconnection was done. 

    In February we gave them a notice to eviction which they ignored. They paid up the electricity and outstanding rent but I told them we were not happy as the neighbours were complaining about the smell coming from the yard. There was a tick infestation that was crawling into the neighbours house as it is a semi detached house. There was litter all over the yard. We gave them two weeks notice and asked them to please move out. They begged us to give them till the end of March which we agreed to. 

    By April they still had not moved or paid any money to us. Once again the municipality had cut the electricity and once again they had illegally connected the electricity. We work for an NPO our debit orders were dishonored we had no money so my husband went to the house he cut the main gate as well as the burglar gate on the doors and sold it for R1000. 

    The tenant then came home. He broke down the door packed his tv into a friends car and then laid a charge of housebreakig against my husband. We have eye witnesses to this. We also have eye witnesses that my husband did not enter the house.

    We then contacted a lawyer for eviction but to date we have heard nothing from the lawyer. The tenant refuses to leave or pay. We are stressed and at our wits end. Please please help us find a solution to this. 

    Regards
    Suzanne Gengadoo. 

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