Turning to the law for leases

Ex-QDMS

Dr Sayed Iqbal Mohamed

A tenant or landlord/lady can end a lease for one of several reasons or a combination of reasons.

In most instances, the party that wishes to cancel the lease must give the other party an opportunity to rectify the problem or breach. In the case of a fixed-period lease, no notice is given since parties agree at the outset that the lease would end on a specific date.

The following are some of the reasons that would bring a lease to an end:

General factors which ends a lease:

* Termination of a periodic lease.

* The lease expires upon its agreed date.

* At the death of one of the parties, if that is what was agreed upon.

* A lease at the will of a party, that is, as long as a party pleases.

* Cancelling for any breach in terms of the agreement.

Some factors which may cause the landlord to end a lease:

* Late payment of rent;

* Being a nuisance to neighbours;

* Damage to or misuse of the dwelling;

* Any breach in terms of the agreement;

* Failure to maintain the premises as agreed.

Some factors which may cause a tenant to end a lease:

* Any breach in terms of the agreement;

* Failure to maintain the premises;

* Failure to allow the tenant free and undisturbed use and occupation of the premises.

When giving a notice to vacate, it must be in writing in terms of section 5(5) of the Rental Housing Act, 1999. The landlord must also state the reason for cancelling the lease, and that there is no unfair practice on his part.

What of a cancellation that is legally challenged?

The court is the ultimate authority in deciding if the lease is properly terminated and the cancellation binding.

If a court order contains an agreement, can a party cancel the “court agreement”, or refuse to abide by it?

In Zerga and Others versus TT Empowerment CC (43785 / 2011) (2012) ZAGPJHC, judgment delivered on June 14, 2012, the court held that the applicants/tenants could not consider the agreement made by consent void or cancelled.

During an application for eviction of the tenants, parties came to an agreement that was made an order of the court.

It was agreed that the tenants would move out of the building within two months of the order, allowing the landlord to carry out renovations.

The landlord would assist in the relocation of the tenants: “The first applicant and AFHCO (Pty) Ltd shall undertake to the best of its endeavours to assist the respondents in finding and locating suitable premises…”

Once renovations were complete and rendered compliant in law, the tenants would have the first option to re-occupy on a fixed-term lease of three years, with a two-year option.

After the order was granted, the tenants approached the court to have the agreement set aside; arguing that it was invalid for vagueness, alternatively cancelled since the respondent was in breach for not providing alternate accommodation.

Acting Judge JPV McNally said that the underlying agreement was not void for vagueness, dismissing the tenants’ application. He held that a party affected by a court order cannot unilaterally cancel it, disregard it or treat it as non-binding, without the authority of a court. If a party cancels a court order, then it would be resorting to self-help or taking the law into one’s own hands, which is not allowed.

He also found that the landlord was not in breach and that the option of a new lease was in fact the right of first refusal.

If understood as an option, then it would be void, since no rental was stated.

* Dr Sayed Iqbal Mohamed is the chairman of the Organisation of Civic Rights.

* For tenants’ rights advice, call Loshni Naidoo or Pretty Gumede at 031 304 6451.