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Wednesday Jun 19, 2013

Tenant 'has right to sub-lease a property '

According to the Rental Housing Act, a landlord is "the owner of a dwelling which is leased and includes his or her duly authorised agent or a person who is in lawful possession of a dwelling and has the right to lease or sub-lease it".

We can divide this definition into two parts:

(a) The first part of the definition simply means what it says - "the owner of a dwelling which is leased and includes his or her duly authorised agent".

The landlord is the owner who himself enters into a lease with a tenant.

A person who concludes a lease on behalf of the owner (duly authorised agent) or performs any act on behalf of the landlord based on the lease.

(b) An explanation is necessary for the second part of the definition, which states: "or a person who is in lawful possession of a dwelling and has the right to lease or sublease it".

A lawful possessor such as a tenant, spouse, a friend, coowner or any person or entity who is given the right of possession and the right to lease or sub-lease.

Under common law, a tenant has the right to sub-lease. The "principal" tenant becomes the landlord and the subtenant becomes the tenant of the "principal" tenant. The tenant may be denied the common law right to sub-lease without permission by a clause in the lease that states that he or she may not sub-lease without the landlord's written consent.

What are the rights and duties of the contracting parties to a sub-lease?

A person claiming superior title or the owner who denies having granted the right to sub-let does not automatically acquire the right to stop the rights and duties of the contracting parties.

He or she must prove such a right if disputed or challenged by instituting legal action, and having obtained an order (judgment, ruling) from a court to that effect.

Until then, the tenant and subtenant, as landlord and tenant, have contractual rights and corresponding obligations that are enforceable through the Rental Housing Tribunal or a court of law.

In certain circumstances, the court may join the owner in a dispute between a tenant and subtenant where its decision would have serious implications for the owner, or may not grant an order without joining the owner, but provide other relief to the tenants or subtenants, as in the case of Mpange and Others v Sithole 2007 (6) SA 578 (W).

In this case, Kathleen Satchwell argued in favour of the courts' powers to grant specific performance decrees, but was unable to make such an award in this instance, for the following reasons:

1. The landlord was not the owner. An order of this nature had serious implications for the owner, who may not be able to institute a claim against the landlord.

2. Delaying the proceedings so that the owner could be joined with the respondent-landlord would further prejudice the constitutional rights of the tenants.

3. The court was not in possession of the proposal detailing repairs and regeneration of the building to be undertaken, cost implications, time frame, disruption for tenants and alternate accommodation during the period of regeneration.

According to the judge, the desperate tenants of Leyland House were at the mercy of an unscrupulous slum landlord.

They faced the legal dilemma of being evicted and becoming homeless, and on the other hand, as paying tenants, living under unsafe conditions.

Since it was not possible to grant a specific performance order, the judge reduced the tenants' rentals.

In Sealand Transport Services CC and Others v eThekwini Municipality (4600/2012) (2012) ZAKZDHC 81 (November 23, 2012) the subtenants failed in their bid to stop their evictions.

The court held that the subtenants had to vacate the property since their landlord Zedek Trading 82 CC's lease with the municipality was terminated and an ejectment order was granted.

"The result is that the applicants find themselves in no better position than Zedek. When Zedek's right of occupation terminated, so did that of the applicants; and when Zedek is compelled to vacate the property, they are similarly compelled. There is consequently no basis in law for the applicants to claim to be allowed a period of time to relocate," read the judgment.

Dr Sayed Iqbal Mohamed
Chairman, 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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