A tenant who has been renting a property for the past eight years has contacted the YourProperty experts after receiving a notice to vacate by the end of the month.
The reader explains that she and the landlord agreed that any repairs, maintenance and the like would be carried out by and at the expense of the reader, which could then be deducted from the agreed monthly rental.
The tenant says that she never made any such deductions but it would seem that she did maintain the property during the lease period.
As the landlord was in prison during the terms of the lease, the reader paid the monthly rental instalments to her landlord’s mother.
It would now appear that the landlord will be released from prison shortly and would like to take occupation of the property. Unfortunately, this places the reader in a dilemma with her having to vacate at short notice.
While she has not mentioned any specific terms of the agreement or the stipulated lease period, it would appear that the lease endures on a month-to-month basis.
See the reader’s question here.
Where the lease runs from month to month, common law requires that the tenant be given a notice of one month to vacate by the landlord.
Failing an agreement to the contrary, this notice should be for one calendar month.
If it was agreed that the lease operate for a fixed period and the landlord is attempting to cancel the lease prematurely, the usual position is that termination would only be allowed where the tenant is in breach.
If the full facts prove that the landlord’s behaviour is unfair practice, the tenant can refer the matter to the Rental Housing Tribunal. On the other hand, it’s entirely possible that the notice is within legal bounds.
When it comes to the maintenance side of things, the reader maintained the rental property without deducting costs from the rental.
Without knowing the exact terms of the agreement, we can only speculate as to what the parties may have agreed upon.
If the reader only effected very minor repairs at minimal cost, she might not have bothered about deducting such minor amounts, in which case she may have no claim at all.
If the reader carried out considerable repairs and maintenance to the property over the years, she may have a substantial claim against the landlord.
It is unclear why the reader chose not to make the agreed deductions from the rental but there may have been extenuating circumstances, perhaps because the landlord’s mother required the full monthly rental to live each month.
There is a prescription of three years for recovering any unclaimed monies in a contract.
Assuming the landlord refuses to refund the reader, she could consider a claim based on contract, claiming the balance of the sum of money spent on maintenance.
Alternatively, she could institute a claim based on unjustified enrichment. In other words, the tenant could argue that the landlord didn’t have to pay for maintenance and was therefore enriched at the reader’s expense.
If the amount is less than R15 000, the reader could avoid expensive legal costs and take the matter to the Small Claims Court.
What complicates this particular scenario is that the property in question is a so-called RDP house.
While renting out and even ‘selling’ an RDP house is commonly done, the Housing Act does not permit it unless the full title of the subsidised house has been transferred to the owner, which only happens after eight years.
It is technically a statutory offence to sell or let the property before this time has elapsed, leaving the tenant without a legal leg to stand on if this is the case.
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