Sean Radue – Radue Attorneys
A tenant who fell on hard times and was in arrears on his rental has approached the YourProperty expert after his landlord gave him notice to vacate the property.
The reader, who is self-employed, explains that he entered into a lease agreement for one year. Then the vehicle he used to conduct his business broke down and the repair costs meant he was unable to pay his rent on time.
He advised the landlord of his predicament and was allowed additional time to make payment, as he was two months in arrears at that stage.
Later, once he was fully paid up, the landlord gave him notice to vacate the rented property. No explanation was provided until the reader requested one and he then received an e-mail advising him that it was a financial decision.
He would now like some expert advice on how to handle the situation.
See the reader’s question here.
Sean Radue of Radue Attorneys in Port Elizabeth says it is unclear whether the notice was simply given on the expiration of the contract but, judging by the reader’s reaction, that appears not to be the case.
“If we consider the matter in terms of a standard lease agreement, a breach usually requires notice.”
But, says Radue, the fact that the landlord condoned the late payment indicated that the reader was no longer in breach and notice was unnecessary.
“More importantly, the Rental Housing Act should be considered in this instance.”
He says the Act sets out the landlord’s right to receive payment and that the landlord may “recover unpaid rental or any other amount that is due and payable after obtaining a ruling by the Tribunal or an order of a court of law.”
Furthermore, the landlord may “terminate the lease in respect of rental housing property on grounds that do not constitute an unfair practice and are specified in the lease”, says Radue.
“While the reader doesn’t clarify what rights the landlord has under the lease itself, the Unfair Practices Regulations to the Act sets out a comprehensive list of permitted and prohibited acts.”
He says these would have to be examined to determine whether the landlord’s notice to vacate constitutes an unfair practice.
“If not, and the notice to terminate is permitted under the lease, the conduct of the landlord may be fair in the circumstances.”
Should the reader oppose the notice to vacate, the landlord would have to take certain legal steps to evict him, says Radue.
“These could be both costly and take a fair amount of time, and the tenant may only be evicted close to the termination date of the lease.”
He says the reader may want to consider referring the matter to his nearest Rental Housing Tribunal for their assessment and determination, if the landlord has committed an unfair practice.
“The reader adds that his dealings with the landlord have been purely via e-mail, which could be permitted in the lease agreement, usually under the so-called ‘domicilium’ clause.”
Radue says the Electronic Communications and Transactions Act sets out, as a starting point, that “information is not without legal force and effect merely on the grounds that it is wholly or partly in the form of a data message.”
“Ultimately, however, the landlord cannot merely decide to evict a tenant because of a fear that the tenant may not pay on time in future, or that he may breach the lease in some other way, or because another – possibly more financially secure – tenant has been found.”
To ask a property related question, visit www.yourproperty.co.za.
