RENTAL WATCH: There is no lease if the parties fail to agree about the rental, or omit it from their discussions and the subsequent conclusion of the contract.

There are instances when occupants are asked to move out, or “evicted”. The occupant may be a relative, friend, even a partner. Without a rental agreement for the property occupied, such a person is not a tenant.

The court makes a clear distinction between an occupant who holds a lease and is therefore a tenant, and someone whose right to occupation is other than a tenancy.

A tenant who fails to pay rental in full, or at all, or on time, is obviously a person who is in breach, but a tenant nonetheless. However, a person could have the right to occupy without becoming an owner or paying any rental, the right of free residence in someone else’s property registered against the title deeds (habitatio).

If a person claims to have a lease in perpetuity (“forever”) it is not a lease; it would be another contract, such as emphyteusis (Maphango and Others v Aengus Lifestyle Properties Pty Ltd [2011] 3 All SA 535, SCA). Emphyteusis would be a specific contract that allows the occupier the right to occupy and to have undisturbed use and enjoyment of a property in return for undertaking specific duties (rental in kind).

In Jordan v Lowery [2011] JOL 27295 (ECP), the court had to decide whether the respondent, Emily Daisy Lowery, was a non-paying tenant or living in the property by holding the right of free residence.

Jordan bought the property, situated at 23 Thembani Road, Greenbushes, Port Elizabeth, from Lowery’s niece in 2006. One of the conditions of the sale was to allow Lowery to continue to live in the property “until her death, or until such time as she vacates the premises”.

However, at the time of the sale, Jordan concluded an oral agreement with Lowery requiring her to pay half the monthly municipal electricity charges and abide by all the terms relating to a tenant.

Their relationship became acrimonious, with Lowery defaulting on the municipal payment.

Eventually, Jordan brought application proceedings in the Eastern Cape High Court for Lowery’s eviction.

Jordan believed that she was legally entitled to evict Lowery for the following reasons:

Lowery did not have her consent to occupy the property and a right to the land.

The lease agreement in terms of which she occupied the property was cancelled.

She failed or refused to vacate the property when requested to do so by the Jordan.

Her actions in occupying the property made it impossible for Jordan to enjoy the use of her property or to sell it.

It was in the public interest that Lowery vacated or be evicted from the property.

Lowery’s response was that she was not a tenant, but her right in and to the property was derived from habitatio - the right of free residence.

The court found that the right to habitatio was not registered against the deed of sale by the parties because of the addition made to the original agreement by confirming that Lowery would be a “non-paying tenant with all rights and obligations normally associated with a non-paying tenant”.

Lowery not only defaulted by failing to pay the municipal charges as agreed, but conducted herself aggressively and was violent towards Jordan.

She admitted bringing broiler chickens to the property and cutting down trees. All these constituted violations of the agreement that gave Jordan the grounds to cancel the lease.

According to Judge NGBeshe, Jordan had cancelled the lease and was therefore entitled to evict Lowery. The judge ordered Lowery to vacate the premises within 30 days from the date of the order and to pay Jordan’s legal costs.

In Kidson & Another v Jimspeed Enterprises CC & Others [2009] JOL 23455 (GNP), the Pretoria High Court gave judgment in favour of the occupants as having the right to free residence in a farmstead. The Kidsons sold their farm in 1998 to Jimspeed, reserving their rights to occupy over the farmstead and an outbuilding.

“Willem Fredrick Kidson shall for his lifetime be entitled to occupy the farm stall on the farm for his own benefit. He shall, however, be responsible for the maintenance and upkeep of the dwelling with outbuilding. The seller shall, however, not be entitled to lease the premises to someone else other than for occupation for his immediate family.” This right was registered against the title deeds.

Jimspeed made life unbearable for the Kidsons, who eventually moved out. At some point Jimspeed destroyed the house and outbuilding and sold the farm. Jimspeed later became liquidated. The new owner, Futurama 143 CC, in turn sold the farm to a family trust.

The Kidsons turned to the Pretoria High Court to declare that their rights still existed as registered. Acting Judge AJ van Rooyen made the following order: That the “Certificate of United Title” issued by the Registrar of Deeds on August 10, 1999 was valid and in force. The Kidsons were entitled to exercise their right of habitatio on the land on which the farmstead and outbuilding stood by re-building the structures or by using alternative means of abode, whether movable or immovable.

They were also entitled to all other rights to which they were entitled when they occupied the original farmstead and outbuilding, that included:

A right of way over the property of the family trust to the land where the farmstead and outbuilding were situated.

The right to construct sewerage and drainage facilities.

The right to connect to an electrical source, if such source was used when the title deed was registered.

Dr Sayed Iqbal Mohamed is the chairperson, 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 at 0313046451 or email [email protected] or [email protected]

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