Written for Property Poser

Our Property Poser panel has received a question from a reader who rents out rooms and a granny flat on his property.

The tenant in the granny flat is several months behind with her rental and she has also given notice three times. However, she is not paying nor moving out.

The flat is in need of some attention and new tenants are ready to move in as soon as it has been renovated. Our reader wants to know what his rights are, especially since he his still paying off on the bond.

The Rental Housing Act No 50 of 1999 regulates the relationship between landlords and tenants of residential property, says Sonet Pieterse from Sonet Pieterse Attorneys & Conveyancers in Port Elizabeth.

She says chapter three of the act describes the rights and obligations of both parties during the lease period.

“One of the rights of the landlord is to receive regular payments of the rental as was agreed upon in the lease agreement. If the tenant does not pay, he or she is breaching the terms of the lease and the landlord will have the right to put him or her on terms.”

Pieterse says if the tenant does not adhere to the landlord’s notice, the latter may cancel the lease, whereafter the tenant will be obliged to vacate the property. “If the tenant does not vacate, the landlord may (in terms of section 4(5) of the act) repossess the property after having obtained a court order to that effect.”

The landlord may also claim the arrear rental, loss of rental and damages, if any, from the tenant, according to Pieterse. “In terms of our common law, the landlord has a tacit hypothec over all movable property of the tenant in the leased property.”

However, says Pieterse, in light of the fact that the act also stipulates that the tenant has the right not to have his or her property searched or his or her possessions seized, the landlord may not attach the tenant’s possessions unless a court order has been obtained.

“It is therefore necessary for the landlord to follow the proper legal channels before attaching the tenant’s possessions with the aim of selling it to recover arrear rental or damages.”

Verity Bigara from Rawson Properties PE says there are a few other factors that may complicate the eviction of the tenant and the landlord’s repossession of the property.

“For example, Section 26 of the Constitution states that all persons have the right to suitable housing and no one may be evicted from their homes without a court order having been obtained.”

Bigara says the court will, in considering whether to grant the order, take all the circumstances pertaining to the particular situation into account.

She says another example is the implications of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act No 19 of 1998. “This act is applicable to a situation where a tenant of residential property remains in the property unlawfully after the lease has come to an end.”

Bigara says the landlord will have to comply with the requirements of the act when requesting a court order for eviction. “Factors like the rights and needs of the elderly, children and disabled, as well as where a woman is the head of the household, will be taken into account when considering the requested court order.”
The reader should consult with an attorney, who will advise him on the legal procedure with regard to an application for the eviction of the tenants, says Bigara.

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