Having a stable living arrangement is an important part of building towards your future and while renting may only be temporary it does offer solace and stability to millions of South Africans across the country. Making sure you have a place to come home to is essential psychologically which is why eviction laws are put in place to protect all parties’ interests.
Just as no one wants to see a family unnecessarily or unfairly made homeless, landlords also have the right to receive a fair rent, on schedule, for the use of their property, and to expect their property to be properly maintained and well looked after
So while this may be a sensitive issue there are conditions when a landlord has the right to cancel a lease.
Why your lease could be cancelled
If a tenant fails to pay rent, and there is a reason to suspect that the tenant may not pay future rent, the landlord may cancel the lease. However, it is not always a simple case and you will need to get the court on your side as a landlord.
Whether or not the court grants the cancellation depends on the wording of the lease. For a cancellation to be justified, the failure to pay must represent a major breach of the lease.
For that to be upheld, the lease must contain a forfeiture clause – that is an indication that prompt payment is of major importance. The wording might include “time is of the essence of the contract”, for instance.
If the lease contains a forfeiture clause, the landlord is permitted to cancel the lease on the first occasion when the tenant fails to pay rent.
However, if the landlord regularly accepts the late payment, he or she cannot then use this as a reason for cancellation, because they have given their tacit approval in the past. In this case, the landlord must give the tenant prior notification if he intends to cancel the lease.
Bear in mind that the Consumer Protection Act (CPA) requires “residential landlords” to give tenants 20 business days’ notice of the need to vacate a property.
According to the CPA, if a tenant is in material breach of the lease, a landlord can’t cancel the lease without giving 20 business days’ notice and can’t cancel the lease if the breach is rectified within those 20 days.
The Rental Housing Act does not contain such a prescriptive clause, but the CPA takes precedence over other legislation.
The landlord must give the tenant “reasonable” notice of termination of the lease. A calendar month notice would satisfy the 20 business days required by the CPA and would be considered reasonable.
Different rules apply when the lease is for public housing. Recent case law established that to terminate a public housing lease agreement on just one month’s notice would be oppressive and unconstitutional.
Therefore, a tenant of public housing should be afforded the chance to rectify a breach prior to lease cancellation.
If a lease expires and the tenant continues to pay rent, and the landlord continues to accept it, they have effectively created a new, implied lease.
There are also certain fixed-term leases that become implied month-to-month leases after expiry, in terms of the CPA. By law, the payment and acceptance of rent after the official end of the lease implies that a new lease has been agreed.
Evictions are never easy and should always be seen as a last resort, always try to come to terms with your tenant before moving into the legal process of eviction. If however, you feel like you have no choice it is best t contact a professional eviction lawyer who can guide you through the process of a residential eviction.
If you need advice on your eviction case or would like us to represent your eviction case, get in touch with Le Roux Attorneys
hi before tenant moved in the agrerment was that he would pay R3500 inc water and lights but if the water and lights account exceeds the usual R3500 that has been stable for years is higher the balance would be fir him to pay. he agreed on this verbally. now their water and lights range from R5500 to R6000 and he says that he is not paying as the agreement is R3500. he is conveniently ignoring the rest of the agreement. my account is running at aR60000 and i dont know what to do.
For what reasons may a landlord do an early termination of lease? I know if tenant is in breach, the landlord may. But if the tenant is not in breach, what would you reason for early termination have to be?
Good day I have a question could someone please assist, I have gone into arrears with my rent, I have been in contact with the landlord regarding the arrears and I advised that I do aknowledge that I owe the money, I also advised that will be able to pay additional over and above my normal rental on a monthly basis towards the arrears, however the landlord requested I pay a high amount for the first payment and the remainder 2 payments can be split, after me advising the landlord that I can not afford that amount currently due to the fact that I had expieranced financial difficulty, now they have cancelled my lease and have asked me to vacate the premises within 7 working days, what happens in the case I have no place to go to what will the landlord do
i have 4years renting and i never signed the lease agreement now landlord gave me a 1 month notice is possible is not 3months?
Under what conditions can a landlord cancel the lease prior to occupation.Good day, if a tenant has signed a fixed term lease agreement for 2 years and landlord wishes to cancel the lease on the grounds that he wants occupation of the property himself, can he and what notice period must be given?
My landlord gave me 2 months notice for end August. I have found a place for 1 July now he refuse to let me move
Good day I am renting a property through Jazmax for the last 4 months (lease agreement is for 1 year) and they have just given me notice to vacate because “landlord wants to move back into the property”. I am not in breach of my agreement and they have given me one month to vacate. Notice was served (via email) on the 17th June(2 days ago) and should it not be a calendar month’s notice? Best,
Denise
Hi I need some advice, our lease has been canceled due to noise complaints (breach of lease). However the landlord has not provided us with any proof that it was from oir flat just an “email” that was received. Our lease agreement states the following :
In the event that the Tenant is in breach of this Lease Agreement and remedies such breach on more than 1 (One) occasion in a 3 (Three) month period, or on 3 (Three) separate occasions during the subsistence of this Lease Agreement, the Landlord shall be entitled to cancel this Lease Agreement. This right to cancel shall exist, regardless of whether the Tenant remedies each breach prior to the expiry of each period contemplated above. Please can someone help me clarify this clause? Am I understanding it correctly, we have to receive 3 different complaints? Thank you in advance.
The landlord is not the court, anything he/she does must be in line with the constitution, regardless it was indicated in a lease or not.
I have a question, can a landlord threaten to cancel your lease because you have legal action taken against them.
If the Tenant is pays rent late and has been given verbal warnings, but does not improve, does the law permit the landlord to give the Tenant notice to vacate the room? There is no written lease agreement.
Hi there
Can a landowner reduce the term of a lease (ie from 12 months to 6 months) if she is planning to sell the property? Thanks!
Luci
Good day. Please can you help me. My landlord wants me to move my things out from the place. Yet my wife gave birth and I has bee. In the hospital and not have had time to see to other things. He has my deposit that I have paid him in full. I did inform him that I would have my things out by Saturday morning the latest. Is this alowed that he can come and remove my things when he told me last night and this morning he wants me out.
My lease is about to be cancelled. What rights do I have as a tenant.Help tenant difficult Place just put on market and she is doing everything possible not to allow prospective buyers into room.
My landlord gave me notice because i asked him to repair the lapa roof leak and swimming pool pump that is a fire risk next to the lapa. I have a home based salon and im afraid to lose business if i relocate. How do i go about this? Do i accept his notice or can i refuse and stay on.
My landlord has given me 3 months notice to 31 January 2020 as they are going to renovate the property and sell. I’m in a predicament that the next property must be able to accept animals and I may need to move out sooner than the date they’re given. If I give 20 working days notice and move out within that period, will I still be liable to pay rent to 31 January 2020. The agents have come back and said that my request to vacate the property earlier and not pay rent to 31 January 2020 has been denied.
Le Roux Attorneys Inc. is a Cape Town based law firm specializing in residential, corporate and farm evictions. We are members of the Law Society of the Cape of Good Hope as well as the Attorneys’ Fidelity Fund, guaranteeing clients both expert assistance and the peace of mind that all funds held in trust are securely underwritten by a certified statutory body. Le Roux Attorneys' immigration division trades as SAvisas.com and assists companies and individuals with their South Africa visa requirements.
Address
1 st floor,
Cube Workspace
Floor Icon Building
24 Hans Strijdom Avenue
Cape Town
8000
