Having exhausted all avenues to negotiate with a tenant to vacate a leased property, commercial and residential landlords are often faced with having to resort to the legal steps of an eviction. Not only is it well known that a legal eviction takes time and it is costly, but often the tenant will raise a valid defence to the legal action, leaving the landlord without recourse to evict.
In general, a landlord has the right to claim eviction unless an occupier can prove that he or she has a stronger right to occupy the property, which shines some truth on the 15th Century adage of ‘possession is nine-tenths of the law’.
A valid and enforceable lease
While a binding and enforceable lease seems like an obvious defence, landlords are often faced with the defence that the lease has not been lawfully cancelled and consequently, he or she is still obligated to provide occupation of the property.
A prime example of this defence is in instances where the Consumer Protection Act is applicable to the specific lease and requires a landlord to effectively provide twenty days’ notice of breach before a fixed term lease agreement may be cancelled. Should the landlord fail to adhere to the provisions of the Act, it may be argued that the lease was unlawfully cancelled, and it is still in force. If the lease agreement was found not to be lawfully cancelled, or for some reason a valid and binding lease exists, the eviction will fail.
To avoid this blunder, landlords and their attorneys should regard the specific provisions of the lease, determine whether there is a prescribed process to lawfully cancel the lease agreement and to ensure that the process is followed to the letter so that the cancellation is valid and lawful.
Liens
A tenant may acquire a lien (or right of retention) where he or she has maintained or improved the property. In terms of this, a tenant may rightfully continue to occupy the property in security for payment of maintenance expended or to the value of the improvements. The right of retention usually falls away when the landlord makes payment of the amount(s) owed to the tenant following which, the landlord would be within his or her right evict the tenant.
To avoid a tenant from raising a lien as a defence to an eviction, the contractual terms should state who is entitled to effect repairs and maintain the property and who would be liable for payment thereof. It should further be agreed that the tenant may not raise a defence of retention to avoid these kinds of semantics.
Huur Gaat Voor Koop
Loosely translated ‘rent goes before buying’, a tenant may enforce the material terms of a lease agreement against the new owner of the property. The new landlord would be obligated to permit the tenant to continue occupying the property in terms of the lease agreement, and he or she may not evict the tenant due to the mere fact that they have purchased the property.
Law firm Barnard says it is of critical importance that the landlord, or prospective landlord, properly ascertain whether an existing lease with the current tenant is in place – or not, and what the essential terms are.
Furthermore, the parties to a lease need to agree that in the event of the landlord selling the property, he or she must provide a reasonable notice of termination of the lease, affording the tenant with enough opportunity to negotiate terms with the new landlord or to relocate.
Landlords need to ensure that the written terms of their lease agreements reflect the above provisions so that in the event of having to institute legal steps against a tenant, he or she is best placed to disprove and discredit any defence that may arise.
For tailored law assistance, please contact Wilco du Toit to arrange a consultation – wilco@barnardinc.co.za / 012 001 2739.
