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Wednesday Mar 19, 2014

Breached property lease 'can be torn up'

When a tenant or landlord fails to honour contractual obligations, or performs late, the innocent or aggrieved party can cancel for breach.

If the tenant cancels, say for the landlord's failure to maintain the dwelling that placed the onus on the landlord to carry out repairs and maintenance, the lease is cancelled.

Landlords, their agents and legal representatives often use a calendar month's notice of termination of lease for breach.

A material breach of the terms of the lease may lead to cancellation of the lease or refusal to renew it. Such a cancellation is with immediate effect for a material breach.

The tenant would be in breach for paying rent late and the landlord may choose to declare the lease cancelled or to enforce the payment of the rent, or do both.

The following are other examples of breach:

  • Failure to pay rent on the agreed date.

  • Continuous late payment.

  • Withholding payment.

  • Damage to the property.

  • Overcrowding.

  • Nuisance: for example, behaviour that annoys and interferes with a neighbour's peaceful right to use and enjoyment, such as screaming, fighting, selling drugs, loud music.

    The landlord's remedy for rental breach would be to:

  • Recover the outstanding rent through the tribunal based on an unfair practice.

  • Recover the outstanding rent through the court by issuing a summons.

  • Cancel the lease and start eviction proceedings.

  • Use the hypothec. The landlord can cancel the lease for arrear rental through a cancellation clause.

    This clause allows a party to cancel immediately if the other party is in breach.

    In the case of the Rental Housing Act, a written lease contract must have a clause that allows the landlord to cancel.

    The act, in terms of section 4(5)(c), allows the landlord to cancel a lease contract when no unfair practice exists.

    In addition to this, the landlord's reasons to cancel must also be specified in the lease; in other words, there must be a cancellation clause.

    Noise as a nuisance factor can be disastrous, especially when a tenant infringes the rights of others.

    It is a serious pollutant and noise levels (measured in decibels ) interfere with a person's health and well-being, affecting hearing loss and causing other physiological and psychological problems.

    A petition or affidavits of the residents in a block, a report from the police or health department or a combination of action can go a long way to dealing with an unruly tenant.

    The landlord can also take legal action against the tenant for breaking the lease, i e moving out before the lease period ends or without a proper notice (one calendar month's notice in the case of a month-to-month periodic lease).

    It is obligatory for a tenant to conduct oneself in a manner that will not bring him or her into conflict with the law or the landlord.

    If the landlord chooses to cancel the lease, he must give the tenant notice of this intention, that is, that the tenant must move out of the dwelling. However, the tenant still has to pay the arrears even after vacating the dwelling.

    In other words, it is essential to place the landlord or tenant on notice for breach of the lease contract.

    Should the offending party fail to remedy the breach, then action can be taken.

    The landlord's refusal to acknowledge or accept the cancellation (for breach) does not have an effect on the lease that is terminated.

    Similarly, if the landlord cancels the lease for late payment of rent, the tenant's acceptance or rejection of the cancellation is not required for the termination to come into existence.

    The lease is cancelled and the relationship between the parties is terminated.

    Dr Sayed Iqbal Mohamed
    Chairman, Organisation of Civic Rights
    Tenant Issues
    Daily News
    www.ocr.org.za

    For advice, phone Pretty Gumede or Loshni Naidoo at 031 304 6451

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