In the middle of the month, a tenant was given notice to move out at the end of the same month. She contended the notice was not valid because the lease required two calendar months' notice and the landlord had not complied with this.
The landlord stated the non-payment of rental and the failure to remedy the breach was the reason for cancelling the lease. When a party (tenant or landlord) fails to perform on its contractual obligation or performs late, the innocent or aggrieved party can cancel for a major breach. The notice period is immediate for breach because a major breach overrides the notice period agreed between the parties or regulated by common law.
If the tenant cancels, say for the landlord’s failure to maintain the dwelling, the lease is cancelled.
The landlord’s refusal to acknowledge or accept the cancellation (for breach) does not have an effect on the cancellation of the lease.
Similarly, if the landlord cancels the lease for late payment of rental, the tenant’s acceptance or rejection of the cancellation is not required.
In terms of section 4(5)(c) of the Rental Housing Act 50 of 1999, the reasons for cancellation must be stipulated in the lease and may not constitute an unfair practice.
The tenant can ignore the cancellation and continue to occupy the dwelling at enormous risk if a breach was committed, or accept she has breached the lease contract and vacate the dwellng.
If the tenant is in breach but refuses or fails to vacate, and the landlord follows ejectment proceedings, the tenant would be liable for legal costs and be ultimately removed by the sheriff on a writ of execution issued by a court at the landlord’s instruction.
Should the tenant intend to challenge the landlord’s cancellation, the tenant must hold the landlord to the lease. In other words, the tenant must continue to occupy the dwelling and discharge his or her obligations.
The tenant should notify the landlord in writing that there is no breach.
The landlord or tenant does not have to cancel for a breach and can decide to continue with the lease or may choose to invoke the breach at a later stage depending on the nature of the breach.
The courts would examine an alleged breach within the context of the lease and the construction of a clause breached would depend “upon a consideration of the nature, effect and scope of the lease and the intention of the parties as gathered from the lease”.
In Protea Assurance Co Ltd v Presauer Developments 1985 (1) SA 737 (A), the court held that the tenant did not breach the lease by erecting partitioning. These were non-permanent structures and did not amount to alterations and additions that required the landlord’s prior written consent.
The courts could limit the meaning of a clause as in the Larry Chao-Sheng Chang case. Cancellation for breach was an extraordinary remedy and the tenant installing a geyser without the landlord’s permission did not breach the lease.
Plasket J concluded his judgment by stating that he was “at a loss to understand how this one act may be said to entitle the applicant to cancel both leases".
However, a notice to terminate a lease contract, once communicated to the other party, cannot be “withdrawn” unless the other party agrees to its withdrawal.
“The notification of termination is a unilateral act permitted by the contract - either inherently or specifically. Unlike the notification of termination in the form of the cancellation of the contract for material breach, which requires a determination of whether or not the termination is permissible on those grounds, the notification of termination on notice does not require any justification. It is sufficient of itself."
In De Vos v Monnik and Visser 1944 CPD 30 at 37, Judge De Villiers confirmed this legal principle: “It seems to me quite clear that if a tenant, or an employee for that matter, gives notice cancelling a lease or terminating his service, as the case may be, then he cannot, except with the consent of the other party to the lease or contract of employment, cancel the notice he has given.”
It is advisable to seek legal advice when there is no clarity about cancellation for breach because once the lease is properly cancelled, the contract is terminated.
Dr Mohamed is chairperson of the Organisation of Civic Rights and deputy chairperson of the KZN Rental Housing Tribunal. He writes in his personal capacity. For advice, call Pretty Gumede or Loshni Naidoo on 0313046451, email [email protected] or [email protected]