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IOLProperty - South African Property For Sale
Wednesday Nov 14, 2012

Golden rules of renting property

When a tenant is harassed by a landlord, he or she can cancel for breach of agreement if the situation constitutes a material breach.

The landlord changing the terms of the lease without the tenant's consent would constitute a breach.

The tenant's remedy is to place the landlord on terms to rectify the breach for altering the terms of the lease agreement.

Once the tenant cancels for breach, there is an immediate termination of the lease and the tenant has to vacate the dwelling.

When the tenant pays rental a few days after the due date because of loss of income and despite the notice of breach, and fails to pay on the due date, the lease can be cancelled.

Similarly, if the tenant allows more than the number of occupants as per the lease to occupy the dwelling, there is a breach.

The landlord's remedy is to place the tenant on terms to rectify the breach (of exceeding the number of occupants) provided there was an agreement about the number of occupants.

The landlord demanding to inspect the dwelling and forcibly entering the dwelling would be in breach, and even criminal tresspass.

The landlord cannot enter the tenant's dwelling unless arrangements is made with the tenant (mutally agreed between the parties). A landlord who enters the tenant's dwelling without permission may be guilty of a criminal trespass (Soffiantini v Mould 1956 (4) SA 150 (E)).

When tenants complain about a possible breach, it must be evaluated meticulously.

There are instances when tenants concoct an elaborate plan to create a breach. Some engage in correspondence to deliberately provoke an antagonistic response from their landlords.

This is provided as proof of the landlord's "arrogant attitude" and nuisance that affect the use and enjoyment.

Some landlords take the bait

and out of anger resort to introducing new terms, providing the basis for tenants to invoke the breach.

Where the owner is the landlord, a change in ownership can play to the advantage of a tenant who is unable to meet rental commitments or wants to break the lease.

A tenant may claim certain agreements with the previous landlord to ease the "burden" of the lease conditions.

The new landlord is bound by the lease in place, but so is the tenant, who must prove any modification to the lease.

Non-variation

A written lease with a nonvariation clause will not allow for any change unless reduced to writing and signed by both parties.

Where there is an oral lease and the landlord does not issue receipts, this would provide an unscrupulous tenant with ample opportunities to breach the lease with impunity.

In Ver Elst v Sabena Belgian World Airlines 1983 (3) SA 637 (A), the tenant cancelled for breach, claiming that the landlord failed to rectify the breach.

The landlord undertook to carry out certain improvements immediately upon the tenant taking occupation. However, no time was fixed for completing the building works.

The tenant served a demand by stipulating the time for the landlord to perform.

The court held that the tenant had failed to properly place the landlord on mora (that he neglected to perform on his contractual agreement, and was therefore in default).

There might be occasions when there is a possible breach, but one that can be rectified without the need to cancel the lease.

Those who cannot afford rentals, and may have convincing and justifiable reasons, need to consult with their landlords to find a way out.

Antagonising the landlord will only make the predicament worse, and may lead to legal action, resulting in eviction and legal costs.

Dishonesty or unscrupulous behaviour will not solve a problem arising.

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

 
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