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Wednesday Mar 05, 2014

Tenants liable when missing deadline to move out

A landlord is entitled to rent for the whole period if the tenant fails to vacate a property on the due date.

If the lease is a monthly one, it is terminable on a month's notice (Scopeful 130 (Pty) Ltd v Mechani Mag (Pty) Ltd 2008 (3) SA 483 (W).

The tenant is required to give the landlord one calendar month's notice of his or her intention to move out.

If the tenant moves out after the calendar month's notice, for example, on the first day of the month, the tenant is liable for the month's rent.

The tenant would also be liable for rent for the remaining period of the lease if she or he decided to end the lease prematurely.

This constitutes a breach of contract and the landlord can sue the tenant for the rent, unless he is able to find a tenant.

The tenant is likely to forfeit the security deposit, and if this amount is less than the monthly rent, the landlord can sue for the balance.

However, if the landlord finds a replacement tenant, he is obliged to refund the full deposit or an amount proportionate to the days the tenant unlawfully occupied the dwelling. The landlord, in this instance, will also have to abandon any claim for future rentals.

The legal argument is that the landlord did not suffer financial prejudice by re-letting the dwelling and receiving a security deposit from the new tenant, even though the previous tenant vacated the dwelling prematurely.

The landlord can cancel a lease if the tenant fails to pay on time.

Should the tenant fail to vacate the premises, the landlord may impose a charge for the unlawful holding over, usually calculated on a higher rental scale (market-related) for a new tenant.

In Buys v South Rand Exploration Co 1910 TPD 1058, the Supreme Court of the Transvaal in Pretoria held that the landlord was justified in cancelling the yearly lease since the tenant paid after January 7.

The lease was renewable each year upon the tenant paying the annual rent on January 7, but would lapse if rent was paid after that date.

What is the legal position if the tenant on a yearly lease fails to vacate on the due date?

Is the tenant liable for another year's rent?

The courts will decide each case on it merits and what may appear to be obvious to a party may be determined differently by the courts.

In Keytel v Hassan (1894) 15 NLR 76, the landlord, a farmer, sued the tenant for one year's rent because the tenant failed to vacate at the end of the lease period in July 1893.

The landlord's argument was that in terms of an agricultural lease, the tenant who holds over is liable for another year's rent on the terms of the original lease.

The tenant's attorney argued that there was no distinction between urban and rural leases, and that holding over was not for the entire lease period of one year, but for the short duration of the tenant's occupation.

The tenant paid rent in September, and having moved out in mid-October, it was not too late for the landlord to find another tenant.

Sir Walter Wragg found that the tenant was not liable for a whole year's rent for holding over:

'It appears to me that, when a European seeks to enforce his strict legal rights against an Indian tenant, from whom he derives considerable profit, he should have his agreement clearly appearing in black and white.

'I can well understand that, from the loose way in which the rent was paid, this Indian tenant may have thought that he was not, by continuing in occupation after the 31st July, incurring liability for a whole year's rent.'

The other two judges held that the agreement was inadequate and there was much confusion between the parties and concurred with the judgment of Wragg.

In the Ntsobi v Berlin Mission Society 1924 TPD 378, the landlord's representative, Wedemeyer, told the tenants of Draaihoek farm and later told Ntsobi, who was not present at the meeting, that their rent would increase from July 1921, in terms of their yearly leases.

Should they refuse to pay the increase, they had to quit the farm.

Ntsobi did not pay the increase and continued to occupy the farm, but the landlord took the matter to the magistrate's court and was granted an ejectment order.

Ntsobi then appealed to the Transvaal Provincial Division before two judges, who upheld the appeal by setting aside the magistrate's order.

The court found that the tenant was not obliged to act upon the notice to quit, since the notice was unclear.

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

For tenants' rights advice, phone Loshni Naidoo or Pretty Gumede at 031 304 6451.


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