CONVEYANCING SERVICES

Transfer of Properties

Registration of Bonds

Cancellation of Bonds

The views in this article are not intended to be, and should not be, construed as legal advice. If legal advice is required, a suitably-qualified attorney should be consulted with.

Some of the laws that apply before and when a lease ends are set out below:

If a lease ends and the tenant remains in the property with the permission of the landlord, the parties are deemed to have entered into a lease on the same terms as the one that ended, except that one month’s written notice may be given by either party to the other, to terminate the lease – Rental Housing Act.

On the ending of a lease, the lease automatically continues on a month-to-month basis subject to any changes of which the landlord may have advised the tenant (which the landlord has to send to the tenant within 40 and 80 days before the ending of the lease), unless the tenant has terminated the lease or agreed to a renewal of the lease – Consumer Protection Act.

In terms of these Acts, on the ending of a lease, the lease continues on a month-to-month basis.

The views in this article are not intended to be, and should not be, construed as legal advice. If legal advice is required, a suitably-qualified attorney should be consulted with.

A Property24 reader asks:

I hope you can help me – do you have any advice with regards to the laws pertaining to general wear and tear within a rented apartment building once a lease agreement has expired?

We have recently moved and have patched up the holes in the walls where we hung pictures in the old rented apartment, after being told to do this by the owner. The owner had left a tub of paint on the balcony for the duration of our year lease and it appeared to be of the same colour as the inside walls, however, it was slightly off and is noticeable only when looked at closely after it had dried.

Yesterday she did a “walk through” with us and stated that we would need to repaint each wall that we had attempted to patch up. She also stated that the paint on the balcony that she had left was not the right colour, but she could also not give us the right colour code, so that we could go out and buy some for touch up.

She also stated that if we were not able to rectify this ourselves, she would withhold a portion of the deposit to cover costs of professional painters coming in to repaint the walls – and we are assuming that, because she doesn’t even know what the right colour is, they will most likely be told to paint the entire 3 bedroom, 2 bathroom apartment!

If you can assist, I would be most grateful.

Alan Levy replies:

For the answer to your question one doesn’t have to look too far.

Firstly one must look at your Lease Agreement, if there is one. You haven’t mentioned there being one and I would be interested to know, if there is one, what terms are provided for therein, relevant to your below query.

Secondly one must look at the Rental Housing Act, relevant to your query areSections 4 and 5, parts of which are loosely quoted below:

Section 4 – The landlord’s rights against the tenant include the right on termination of a lease to receive the property in a good state of repair, save for fair wear and tear and to claim compensation for damage to the property, if any, caused by the tenant.

Section 5 – On the expiration of the lease, the landlord may apply such deposit towards the payment of all amounts for which the tenant is liable under the lease, including the reasonable cost of repairing damage to the property during the lease period and the balance of the deposit and interest, if any, must then be refunded to the tenant by the landlord not later than 14 days of restoration of the dwelling to the landlord.

Fair wear and tear refers to damage caused by the effluxion of time and is not too relevant to your query.

You had an obligation to return the property in a good state of repair and the landlord can claim compensation for damage caused by you to the property and can apply the deposit towards such damage.

The issue, in your particular case, as I see it is, were you correct in assuming that the paint left on the balcony was the paint the landlord would have wanted you to use to touch up and how different are the newly painted areas to the rest of the wall?

If you were correct in assuming and/or the areas are not so different, the deposit cannot be applied to repaint these areas. If you were incorrect in assuming and/or the areas are different, the deposit may be applied to paint these areas.

If you and the landlord cannot reach agreement, you can approach your local Rental Housing Tribunal for guidance in the matter.

The views in this article are not intended to be, and should not be, construed as legal advice. If legal advice is required, a suitably-qualified attorney should be consulted with.

The Prevention of and Illegal Eviction from and Unlawful Occupation of Land Act (“the PIE Act”) was promulgated in 1998.

In terms of Section 4 of the Act, an owner wanting to evict an unlawful occupier from any land in South Africa has to take various additional steps laid out in Section 4 of the PIE Act.

An unlawful occupier is defined in the PIE Act as a person who occupies land without the consent of the owner or person in charge of the land or without any other right in law to occupy the land.

The definition of unlawful occupier is currently very wide and therefore means that owners of land who wish to evict their ordinary residential tenants need to comply with the additional procedures of the Act.

Currently, I understand the talk to be that the legislature will be debating or has debated an amendment to the PIE Act, which will then be available for public comment.

I understand the debate to revolve around amending the definition of an unlawful occupier to exclude a party who previously occupied such land for residential purposes with the owner’s consent, meaning a tenant.

If such amendment is passed, a tenant who once occupied the land with the landlord’s consent may no longer be defined as an unlawful occupier.  The landlord on taking steps to evict the tenant may not then have to comply with Section 4 of the PIE Act.

These steps by the legislature will be welcomed by land owners in South Africa and will result in eviction attorneys being able to more swiftly obtain eviction orders against defaulting tenants. – Alan Levy

The views in this article are not intended to be, and should not be, construed as legal advice. If legal advice is required, a suitably-qualified attorney should be consulted with.

Article By Lea Jacobs

Tenants may be forgiven for thinking that they have every right to pack up and move on as they see fit, thanks to a clause in the Consumer Protection Act (CPA). However, landlords do enjoy a certain amount of protection and the tenant can legally be held liable for a number of costs.
The Consumer Protection Act states that a consumer may cancel an agreement as long as they give 20 business days’ notice in writing. This seems to apply to a lease agreement, but be warned; the consumer can still be held liable for a cancellation penalty.

Alan Levy from Alan Levy Attorneys says there seems to be a general misconception amongst tenants that they are entitled to give 20 business days’ notice of cancellation of a lease without any financial repercussions. This is simply not true and in terms of property rentals this can become an expensive exercise for an unsuspecting tenant who believes that there will be no financial obligations once he has exercised his rights.
“The 20 business day notice period that a tenant can now give will not absolve the tenant of all responsibility,” says Levy. He says that the tenant will still be liable to the landlord for reasonable cancellation costs as a result of the early cancellation of the lease by the tenant.
While a landlord may not rack up the charges so to speak, it is up to him to decide what constitutes a reasonable amount, if this not dealt with in the lease agreement. “Should the tenant dispute the reasonableness thereof, then the Court will have to decide whether the cancellation costs are indeed reasonable.”

Tenants should consider thinking like a landlord before they exercise their right to cancel. For example, property rentals have generally worked on a calendar month cycle, and will probably continue to do so for the sake of convenience, despite the ability to give 20 days’ notice under the CPA. For instance, you move in on the 1st of a month and you vacate at the end of a month. This works well for all concerned as it gives the landlord a full month to find a suitable tenant. However, if notice is given during the month, it is going to be far harder to secure a new tenant who is willing and able to move in, considering that he himself will more than likely be locked into his own lease until the end of that particular month.
In cases such as these, a landlord may charge the previous tenant an additional month’s rent to cover his losses. It doesn’t stop there. A landlord may also charge for cleaning the property, re-advertising the property, as well as the agent’s costs involved in securing a new tenant for the property. The biggest danger for the tenant, however, is if the landlord fails to find a tenant when the existing tenant moves out.

“The tenant could also be liable for rental for the period that it takes the landlord to procure a new tenant for the premises, although this would also have to be a reasonable amount,” says Levy.
In theory, this means that a landlord would be quite within his rights if, despite all his efforts he failed to secure a new tenant, to hold the previous tenant liable for the full rental on the property. Paying an equivalent of two months’ rent is out of reach for most, but what would happen in the case where the landlord failed to secure a tenant for a three month period?

This particular aspect of the CPA has not yet been tested in a court of law. However, the general consensus is that although a landlord may not penalise the tenant and force him to pay rental for the entire time that the initial lease agreement would have run, he could be well within his rights to insist that the tenant continues paying rent until a new tenant has been found, albeit within the bounds of reasonableness. As stated, what is reasonable will have to be tested in court.
The message is clear: exercise your right to cancel by all means, but remember that you could be the one who is out of pocket at the end of the day. By opening the doors of communication with your landlord, discussing the issue and trying to reach a compromise may well save you a great deal of financial stress, litigation and inconvenience.

The views in this article are not intended to be, and should not be, construed as legal advice. If legal advice is required, a suitably-qualified attorney should be consulted with.

21 Sep 2011

A Property24 reader asks:

On termination of a lease agreement to what extent can the landlord claim for damages? Can items include painting of walls and general cleaning? And if items were defective before occupation and brought to the landlord’s attention, can the landlord claim for those items if he did not fix them?

Alan Levy replies:

The landlord, on termination of the lease agreement, can claim from the tenant damages for any defects to the premises i.e. if the walls were tarnished by the tenant or if the premises were left in an unclean way, these costs can be claimed by the landlord.

If items such as these were defective before occupation and brought to the landlord’s attention, then the landlord cannot claim for these items, once the lease is terminated.

In general, any conduct by the tenant which causes damage to the premises may be reclaimed by the landlord. If the premises were damaged before occupation and this was properly recorded by the tenant then these damages cannot be claimed by the landlord from the tenant.

The views herein are not intended to be and should not be construed as legal advice. If legal advice is required, a suitably qualified attorney should be consulted with.