Give the required notice, or you risk your deposit
Hi, I was renting a property in Hoedspruit for the past year, the lease expired at the end of May and we never signed a new fixed term lease agreement. The property was owned by my immediate boss. I was dismissed on the 15th of June.
When my boss/landlord informed me that I was being dismissed from my job I was forced to also tell him on the same day that I would be vacating the property at the end of that same month.
I have since send an email asking when I can expect my security deposit of R6,500 to be paid back to me. The landlord has informed me that he can’t get a replacement for the apartment, so my deposit is going towards that loss of rental income. Please assist me as I was planning on using that deposit on my rental in my new apartment. Thank you – Fidelis
Hi Fidelis, if the lease expired at the end of May then it continued thereafter on a month to month basis from the beginning of June subject to either party being entitled to terminate on a calendar month’s notice. In this case, you only gave two weeks’ notice, which was only effective at the end of July – and therefore it does seem to render you liable to pay July rental.
While it certainly seems at first glance to be an inequitable situation, given that your ex employer who terminated your employment is also your landlord, unfortunately the law regarding the termination of periodic month to month leases in circumstances such as these is clear, and you erred by giving insufficient notice.
To elucidate regarding the necessary notice period, the following provisions of Rental Housing Act and Consumer Protection Act (respectively) should be read together:
Section 5(5) of the RHA: If on the expiration of the lease the tenant remains in the dwelling with the express or tacit consent of the landlord, the parties are deemed, in the absence of a further written lease, to have entered into a periodic lease, on the same terms and conditions as the expired lease, except that at least one [calendar] month’s written notice must be given of the intention by either party to terminate the lease.
Section 14(2)(d): [O]n the expiry of the fixed term of the consumer agreement, it will be automatically continued on a month-to-month basis, subject to any material changes of which the supplier has given notice, as contemplated in paragraph (c), unless the consumer expressly—
(i) directs the supplier to terminate the agreement on the expiry date; or
(ii) agrees to a renewal of the agreement for a further fixed term.
While I empathise with you and what is clearly a challenging situation, in my opinion the landlord is entitled to retain the deposit to cover rental for the month of July. However, I think it would be reasonable, in light of the termination of your employment, for the landlord to only retain perhaps half of the deposit in the circumstances. On the face of it, in law it appears that the landlord is correct and entitled to retain the full amount (assuming the deposit is an amount equal to one month’s rental).
You may still claim any interest which has accrued on the deposit since the commencement of the lease, however I imagine this amount would be negligible.
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Who is Marlon Shevelew?
Marlon Shevelew is the director of Marlon Shevelew and Associates Inc. a law firm specialising in rental property, contractual, consumer and company law. The firm is the recipient of more than 45 international property law awards. Marlon is current author of PayProp’s rental documentation and preferred rental property attorney to the Institute of Estate Agents South Africa (IEASA), the Rental Housing Tribunal Western Cape and presenter of the Advanced Residential Property Law Seminar endorsed by the University of Cape Town. Marlon has featured on Cape Talk 567 and Property Matters on DStv, contributes as a guest expert to several property publications and was invited by Juta to write a book on rental property law, by LexisNexis Butterworths to edit its forms and precedents on rental property law and, on no less than three occasions, was invited by the Law Society of South Africa to lecture and train candidate attorneys and attorneys on rental property law. Marlon also created the unique Rental Retainer Club, RentDoc and LevyDoc which offers clients affordable legal fees for rental property and sectional title related matters. Marlon is contactable on email@example.com anytime for more information on these services.