How to evict a tenant – Why the lease should be signed close to home
Rent is late…again. As this dreadful month-end ritual unfolds, you can’t help but wonder: Will the rent be paid in full, or at all, this time? If not, what then? Can this situation be resolved? How can it be prevented? Perhaps the most common predicament landlords face when having to evict a tenant is the uncertainty of what to expect and figuring out what to do. In her book, The Landlord’s Guide – Property Rental and Eviction, attorney and MD of SSLR Inc, Cilna Steyn, provides guidance on some of the typical problems facing landlords while providing the legal options available to address them.
Steyn has kindly granted HomeTimes permission to republish her book.
Lease Agreements are contracts which regulate and, in fact, form the very basis of the relationship between landlords and tenants. It is a term used to reference an agreement, whether it be written, verbal or tacit, whereby a landlord (person who lets), undertakes to rent out property to a tenant (person who hires), in exchange for payment of a sum of money.
Important Note: It is important to note at this point, however, that the Rental Housing Amendment Bill – which was tabled in January 2014 – will, once enacted, require all lease agreements to be in writing in order to be enforceable.
A lease agreement has to be clear on the following:
- The lease premises;
- That the landlord indeed leases the premises to the tenant and that the tenant in return hires the premises from the landlord;
- The rental payments – which does not necessarily have to be monetary – though it usually is, but it can also be, for instance, renovations to the property, maintaining the property etc; and
- The term of the agreement, even if this is month-to-month.
Essentials of a lease agreement
The essentials of a contract of lease are as follows:
An undertaking by the landlord to give the tenant the use and enjoyment of the property;
An agreement between the landlord and tenant that the tenant’s use and enjoyment is to be temporary; and
An undertaking by the tenant to pay rent in return for the use and enjoyment of the property.
Essentialia is the Latin term used to describe the essential elements of an agreement necessary to have the agreement qualify as a specific agreement. Typical examples include lease agreements, sale agreements or service-level agreements. An agreement that does not contain the essentialia for a specific agreement does not render the agreement invalid, it would merely mean that the agreement would not be the specific agreement that the parties intended to conclude.
At this point it is important to consider the rights that an owner has in a property.
The two relevant rights are;
- The right of ownership; and
- The right of occupation.
When concluding a lease agreement, the owner does not limit her right of ownership at all. For this reason the owner can still sell the property or use it as security for debt while the lease agreement has no impact on this right of ownership. The right that the owner is trading with is only the right of occupation. Now, considering the essentials of a lease agreement, it becomes clear that the essence of a lease agreement is that the landlord gives this right of occupation away to the tenant. In doing so, the landlord becomes entitled to compensation for this right which she is giving up (i.e. the rental payable in terms of the agreement).
Upon taking occupation of the premises, the occupational right vests in the tenant. For this reason the tenant is entitled to undisturbed use and enjoyment of the premises. The landlord would no longer have the occupational right and would no longer be able to enforce access to the premises based on her occupational right and only retains the right of ownership.
The occupational right that the tenant acquires only ceases upon termination or cancellation of the agreement. This does not imply that the landlord can take back occupation of the premises automatically. If the tenant refuses to vacate the premises at this point, the landlord’s only means to enforce this right is by way of a court order, which would be an eviction order.
It should be kept in mind that there is a difference between the cancellation of the lease agreement and the termination thereof upon its expiry. As was explained in Chapter III, termination would imply that the agreement has reached its natural end due to the effluxion of time or by mutual agreement between the parties. Cancellation on the other hand is a remedy in the Law of Contract which can be elected when a contracting party is in breach of an agreement. In lease agreements the landlord would be required to give the tenant notice if in breach. The notice must inform the tenant of the remedy elected by the landlord, such as cancellation of the lease agreement should the tenant fail to remedy the breach. Only once the time period allowed for remedy of the breach has lapsed, would the landlord be in a position to cancel the lease agreement which would render the tenant’s occupation illegal.
A written lease agreement is concluded at the place where (and time when) the last party attends to signature the written lease agreement – unless another specific place and time are agreed upon. This is of paramount importance as it affects which court has jurisdiction to deal with matters pertaining to that lease. It happens very often that the landlord signs the agreement long after the tenant and at a place not related to the property in any way. Even though the property is then in the jurisdictional area of a specific court, a court with no particular relation to the agreement whatsoever might have jurisdiction. This could result in unnecessary instruction of legal correspondents and travelling for all parties involved.
A lease agreement is governed by common law and/or statutory law.
Common law is a secondary source of authority; it refers to laws not made by parliament or any level of government. They are sourced from decisions or judgements of courts, Indigenous Law, or Roman Dutch Law. It is modernised on a continuous basis in order to stay relevant.
Should a lease agreement not be subject to any statutory provision, only common law would apply to the specific lease agreement. Common law is the law which has not been codified (collected, written down and systemised into legislation). This is the law which is determined as being “common” among people and therefore does not require codification. Our common law is rooted in Roman Dutch Law, English Law and Indigenous Law which has been modernised.
Our courts use case law and the precedent system in order to interpret the provisions and intentions of statutes and common law. Case law is then compared to other similar cases in order to establish precedent. The cases that have been decided by more superior courts, for example the Supreme Court of Appeal or the Constitutional Court, would bear more weight than cases decided by the High Court or the Magistrates’ Court.
Should there be no legislation regulating a lease agreement, then common law would apply to that agreement. A verbal or tacit lease agreement would always be subject to common law. Although it is always possible to contract out of common law by reducing such a lease agreement to writing or by making abundantly clear the terms on which the parties have reached consensus. For example, there is the common law duty of the landlord to deliver the property in good order and the tenant’s reciprocal duty to return it in a similar condition. However, it is possible to contract out of this by for example expressing certain faults in the property in the lease agreement.
Statutory law simply refers to legislation or acts and is considered to be a primary source of authority in South African law.
Statutory laws applicable to lease agreements are summarised below:
The Consumer Protection Act 68 of 2008 (CPA)
In relation to the lease agreement, the purpose of the Consumer Protection Act is to protect the consumer (or the tenant) against any unfair marketing and business practices which may be used by the supplier (or the landlord). Section 14 of the CPA bears the most relevance to lease agreements.
The Rental Housing Act 50 of 1999 (RHA)
The Rental Housing Act allows for the establishment of the Rental Housing Tribunal and lays down general requirements relating to leases. The Rental Housing Act is the only one of these statutes that applies specifically to leases, and then only to residential leases.
The Magistrates’ Court Act 32 of 1944 (MCA)
The Magistrates’ Court Act forms the basis of Magistrates’ Courts, being creatures of statute. The act governs Magistrates’ authority and outlines Magistrates’ Court procedures. With regards to lease agreements, it provides for the enforcement of the landlord’s hypothec, by introducing the rent interdict summons.
The Extension of Security of Tenure Act 62 of 2008 (ESTA)
This act permits the landlord to terminate the lease on any lawful ground, provided that the termination is just and equitable under the circumstances.
The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE)
PIE sets out procedural and substantive requirements that must be satisfied before a court may grant an order of eviction.
Next time: Unpacking relevant statutory law
Who is Cilna Steyn?
Cilna Steyn, MD of SSLR Inc, completed her LLB Degree at Unisa, after which she was admitted as an attorney in 2007. She co-founded Steyn & Steyn Attorneys, where she began specialising in evictions.
She regularly presents training sessions, where she advises groups of rental agents and private landlords on matters relating to landlord and tenant disputes and broader scope property law-related matters. She also acts on the panel of experts for the Law Society of South Africa’s Legal Education and Development. She presents seminars on behalf of LSSA: LEAD, educating attorneys nationally on eviction procedures and rental claims. She is one of the drafting attorneys of the TPN (Tenant Profile Network) Residential Lease Pack.
Cilna authored The Landlord’s Guide – Property Rental and Eviction in 2015 and regularly publishes articles in newspapers and peer-review magazines. She also appears on television and radio, participating in discussions relating to property law and, in particular, evictions. As the managing director she is dedicated to leading SSLR Inc in accordance with its core values.
Cilna is passionate about property and understands the pressures of being a landlord. Her attention to detail and knowledge of property law makes for efficient evictions.