The limitation of the owner’s right arises from the lease agreement, which provides the tenant a temporary period of the right to possess the property and to have undisturbed use and enjoyment of the property. This prevents the owner from walking onto the leased property without a good reason and without making prior arrangements for a mutually agreed time to do so.
Some legal writers believe that a real right is created with long leases that are registered with the deeds office, while short-term leases create a creditor’s right. A right also brings with it duties, responsibilities and obligations. These include the payment of rentals in full and on time, taking care of the property, allowing the owner, within reason, to inspect the property and showing it to prospective buyers or tenants. The lease therefore creates reciprocal obligations.
“A lease of immovable property is a reciprocal agreement between one party (the lessor) and another party (the lessee) whereby the lessor agrees to give the lessee the temporary use and enjoyment of the property in return for the payment of rent. The temporary use and enjoyment of the property is an essential ingredient of a lease.” - WE Cooper, Landlord and Tenant, 2ed (1994) 2.
The owner’s right is an “absolute” real right that can be enforced against the “whole world”. This also means that the owner has the right to claim or repossess a property leased to a tenant, or from any person who is in possession of it. That right, however, is restricted for the period the property is leased to the tenant.
The tenant’s real right, on the other hand, is not absolute. That right comes to an end when the lease comes to an end. To put it another way, the owner’s right endures forever while the tenant cannot have a right in perpetuity. A tenant’s right is for the duration of the lease, as pointed out by Judge Frederik Danië* Jacobus Brand in Maphango v Aengus Lifestyle Properties 2011 (5) SA 19 (SCA).
The tenant’s security of tenure will never endure beyond the end of the notice period or the agreed period the lease would end in the case of fixed-term leases. If the tenant refuses to vacate after the cancellation, and is willing to challenge it, then the court process must follow.
There might be valid reasons to challenge a cancellation, but to do so merely to "buy time" may have serious financial consequences for the tenant. For example, where a tenant is in breach for non-payment of rentals and, despite demands to remedy the breach, fails to settle the arrears, the lease is cancelled but the tenant refuses to move out.
It can be argued that the tenant’s refusal to move out is in violation of the owner’s absolute right, which is guaranteed and protected by the Constitution.
In the event a tenant refuses or fails to vacate, the court will have to decide the merits of the arguments of the parties. The Constitution also states that no one can be evicted without an order of court.
There are instances when the courts have rejected the cancellations and found these to be invalid, and the claims for damages for unlawfully holding over (refusing to vacate) rejected as in the case of Hyprop Investments and another v NCS Carriers and Forwarding CC and another (2013) JOL 30246 (GSJ).
Let's not forget that a lease is a contract and breach, cancellation and damage claims must follow established rules in a dispute. In the same way a business entity’s representative cannot walk into one’s house and remove an item for which money is owed, the landlord cannot gain repossession of his or her property without an order from the court.
Only a court can take away the real right when a tenant refuses to give vacant occupation.
The delay in court procedure, and in the absence of a specialised court like the landlord-tenant courts in New York in the US, prejudices the rights of landlords.
The law, however, does give a landlord or owner a lien, a right to the tenant’s personal belongings, to seize and to sell these to recover unpaid rentals in the event the tenant fails to remedy a material breach. To exercise the right of lien, the landlord has to perfect it by applying to the court or the provincial rental housing tribunal to seize the tenant’s personal belongings.
If the landlord seizes the tenant’s property without the due process, it may amount to theft, or allow the tenant to bring an application against the landlord. There are cases where landlords who dutifully follow the law end up with huge financial losses because of problematic tenants who had no intention of honouring their contractual commitments.
The situation is complicated and onerous for the owner where a tenant has absconded leaving behind municipal debts and subtenants. The owner is required to follow the legal process to remove the subtenants if the tenant’s lease was not cancelled and an ejectment order secured against him and his subtenants.
Dr Sayed Iqbal Mohamed is the chairperson of the Organisation of Civic Rights and deputy chairperson of the KZN Rental Housing Tribunal. He writes in his personal capacity. For advice, contact Pretty Gumede or Loshni Naidoo on 0313046451, email [email protected] or [email protected]