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Wednesday Jan 16, 2013

eThekwini pays price for delay in property eviction

When parties enter into to a lease contract, either the tenant or the landlord can give the required notice to end the lease.

When a party performs late or fails to perform on its contractual obligation, the innocent or aggrieved party is allowed to cancel for a major breach.

These would include the landlord's failure or refusal to make the dwelling available on the agreed date, or to carry out repairs that substantially affect the use and enjoyment of the dwelling.

A landlord can cancel the lease if the tenant, upon receiving written notice, fails to remedy a breach, such as non-payment of rental.

The landlord can start eviction (ejectment) proceedings through the courts should the tenant remain in occupation after the lease is cancelled.

Can a landlord approach the court seven years after cancelling the lease for breach?

What rights do sub-tenants have when the landlord intends to evict the principal or main tenant?

Can a tenant challenge the new owner/landlord's right to evict on a notice of cancellation for breach issued by the previous owner?

In eThekwini municipality v Sensation Transport Services CC and others (2012) JOL 29756 (KZD), Judge Steyn delivered a judgment on December 2, 2011, which included the legal questions above.

Sensation Transport Services CC concluded a written lease with the North and South Central Local Council.

The CC subsequently entered into sub-leases with Freight Logistics and Louis Kisten.

eThekwini municipality replaced the North and South Central Local Council, succeeding as the owner and landlord and the applicant in the court proceedings.

The CC failed to pay rentals and despite a notice to remedy the breach, continued to occupy without making payments.

The notice for breach stated the following:

"Final notice: Arrear Rental: Site MT1543: Ebonyfield Avenue: Account: 83074746038.

"The City Treasurer has informed me that your rental account is still in arrears notwithstanding several reminders by the Director: Consolidated Billing requesting payment.

"In terms of your Tenancy Agreement, the rental is payable in advance on or before the 7th (seventh) day of each month and your failure to do so constitutes a breach of the Agreement. Accordingly, I hereby serve notice upon you, in terms of clause 17, to remedy the breach within 14 days of the date of this letter by paying in full, the arrear rent, administration charges and any tax due or by making suitable arrangements with the director: Consolidated Billing, to settle your account.

"Should you fail to remedy the breach within the period stated above, your Tenancy Agreement will be terminated without further notice and the Council will require vacant possession of the land.

"Upon such cancellation and should you have failed to vacate the land, not only will legal action be instituted against you for the recovery of all monies due to the Council, but also for eviction and damages, all costs being to your account.

"In the circumstance, it will be in your best interests to give this matter your urgent attention."

According to the advocate who represented the CC, the above notice was cancelled by the landlord's conduct.

Judge Esther Steyn rejected this argument, saying: "While I agree with Mr Tobias that the applicant has inordinately delayed the application for ejectment, I do not agree that such delay constitutes a waiver of the first notice. It is disturbing that the applicant could adopt such a laid-back approach, which ultimately impacts on the ratepayers of the area."

As for the sub-tenants, the judge said that there was no contractual link between them and the landlord and that their rights could go no further than the main tenant.

The order for ejectment was granted, but eThekwini municipality, although the successful party, it had to pay its own costs for the delay.

Ultimately, it is the ratepayers who had to pay the legal costs for tardiness and not the officials in charge.

Dr Sayed Iqbal Mohamed,
Chairperson, Organisation of Civic Rights.
Tenant Issues
Daily News

For tenant's rights' advice, contact Loshni Naidoo or Pretty Gumede at 031 304 6451.


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