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Wednesday May 13, 2015

Snoozing not an option for landlords

Landlords who are slow in taking action against their tenants for rental arrears are likely to be burdened with legal costs and escalating arrears.

Some landlords are generous and are willing to write off arrears if their tenants are willing to move out.

The write-off is a huge loss for a landlord who relies on the rental income from a single property that he or she owns.

It is wise to have a written undertaking that the arrears would be written off on condition that the tenant moves out of the property on a specific date. This undertaking will help to bring an application through the courts for an eviction should the tenant fail to vacate on the agreed date.

In application proceedings, the landlord is certain that there are no dispute of facts. He or she will present the case based on facts and evidence in an affidavit for the magistrate or judge to decide the case.

Application proceedings are quicker and when successful, reduces the legal costs and time in comparison to action proceedings by way of summons. If the tenant can show dispute of facts, then the application for eviction will not be granted and the matter is set down for trial.

If there are disputes, the landlord ought to issue summons (action proceedings), either an ordinary or one with a rent interdict. One tenant who intends to challenge it will enter "an appearance to defend".

If the tenant does not respond to a summons immediately, default judgment can be taken against him or her, followed by an ejectment order.

A tenant must ensure that he or she has a proper defence, that is, a reason why the court should not give judgment in favour of the landlord. Merely creating a dispute for the sake of delaying court proceedings is unfair and devious.

Apart from securing a written undertaking from a tenant who is in wilful breach, that may assist in application proceedings. Another example is that of a fixed lease.

A one-year lease ends on the last day of the 12th month and, unless any other provision is stated in the lease regarding termination or renewal, the tenant is required to vacate the dwelling on the last day without notice.

Should the landlord present a new lease for the tenant to enter into another year's contract (or whatever the period), and the tenant declines, the tenant must vacate on the last day for which no notice to vacate is required.

Essentially, there was a contract for one year, and if this contract is not extended or a new contract entered into, the tenant has to move out of the dwelling. Application proceedings would be justified in this instance because, on the face of it, there ought to be no dispute of facts.

Should the tenant oppose the application on the grounds that there is a factual dispute, this must be disclosed in the opposing affidavit, so that the magistrate or judge can determine whether the tenant makes out a case for the application to be dismissed, or set down for the parties to give evidence.

The tenant's disclosure would include presenting his or her case in an affidavit, as if there is going to be a trial, and not simply state there is a dispute of facts.

Heher refers to this distinction in his judgment: "A real, genuine and bona fide dispute of fact can exist only where the court is satisfied that the party who purports to raise the dispute has in his affidavit seriously and unambiguously addressed the fact said to be disputed.

"There will, of course, be instances where a bare denial meets the requirement, because there is no other way open to the disputing party and nothing more can, therefore, be expected of him. But even that may not be sufficient if the fact averred lies purely within the knowledge of the averring party, and no basis is laid for disputing the veracity or accuracy of the averment." (at para 13 in Wightman t/a JW Construction v Headfour (Pty) Ltd and Another 2008 (3) SA 371.

The landlord must consult an attorney for advice and representation. The attorney acting in the best interest of the client will determine whether application or action proceedings will resolve the eviction of the defaulting tenant.

Dr Sayed Iqbal Mohamed
Tenant Issues
Daily News




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