A landlord who allows a prospective tenant to view the dwelling and is then informed by the tenant that he has decided to take occupation or has taken occupation, may prejudice his/her rights. If the tenant has taken occupation and the deposit that was agreed upon was not paid, the landlord would have compromised himself/herself.
The onus rests on the landlord to establish the bona fides (good faith, integrity) of the prospective tenant. After all, the tenant would be given possession of the dwelling; to use and enjoy, and, to have temporary ownership. In reality, the owner or landlord guarantees the tenant the following:
Physical control over the property with all its accessories.
Unhindered possession of the property
Undisturbed use and enjoyment of the property.
In Soffiantini v Mould (1956) 4 All SA 171 (E), the landlord lost his case on appeal to the full bench. The tenant succeeded earlier in the High Court, in interdicting the landlord from entering the premises without consent.
The landlord believed he had unrestricted right of entry to the leased premises. He attempted to have the electricity supply to the lift shut off. He believed that, as the owner of the property and the landlord (of 82 Oxford Street, East London), he had the right to be in the property rented out to his tenant, Maison Centrale Hairdressing Saloon.
He walked into the rented property on five separate instances and even asked the tenant’s customers to leave on one occasion.
Judges Jennett and Wynne agreed with the judgment of Judge President Price that “the landlord is not entitled to enter the leased premises without the consent of the tenant”. In other words, a tenant becomes a temporary owner during the lease period and the landlord’s right is restricted.
As for temporary ownership, can a tenant claim more than the right to “temporary ownership” once the lease period has expired or lawfully terminated? Does a tenant not have a right to security of tenure? Does a tenant have the right to continue to occupy after the lease is cancelled and after the court grants an eviction order? Is a private owner obliged to provide permanent or semi-permanent accommodation to tenants?
A case in point is where the new owner-landlord terminated the leases of 18 tenants of Lowliebenhof, a ten-storey building in Braamfontein, Johannesburg.
Tenants refused to vacate and the landlord brought an application to have the tenants evicted before the South Gauteng High Court, Johannesburg. Van der Riet AJ granted eviction orders against nine tenants – two tenants were not evicted since their leases were not properly terminated.
The judge was of the view that evicting the remaining seven tenants would render them homeless. He therefore suspended their evictions for three months so that the City of Johannesburg could be joined as a party to the proceedings, to provide a report as to the steps it would take to provide alternative accommodation.
The tenants appealed against the judgment of Van der Riet. The appeal was heard before five judges of the Supreme Court of Appeal (SCA). This was the case of Maphango and others v Aengus Lifestyle Properties (Pty) Ltd (2011) 3 All SA 535 (SCA). The SCA looked at several issues that included whether a tenant had a claim to security of tenure after the termination of a lease.
The question was if a landlord could increase rentals by cancelling the leases, after the initial fixed period had lapsed. Can a landlord terminate a periodic (monthly) lease that followed a fixed term lease and offer a new lease with a rent increase and different contractual terms?
Is the landlord not precluded by the tacit terms of the agreement?
After discussing the legal principles, rules and several decided cases, the court found the landlord could do so.
The second argument was that terminating the lease for the purposes of a rent increase goes against public policy. The tenants’ contention in this regard was based on three grounds (paragraph 12(b) of the judgment):
(a) That the termination would be unreasonable and unfair;
(b) That it would constitute an infringement of their constitutional right to have access to adequate housing in terms of section 26(1) of the Constitution;
(c) That it constituted an “unfair practice” as contemplated in the Rental Housing Act 50 of 1999, read with the Gauteng Unfair Practice Regulations 2001, promulgated under that Act.
Brand J examined the above in terms of the relevant laws and regarding security of tenure. He explained that an owner had an indefinite right to security of tenure in terms of his or her right to possess property. A tenant’s right to security of tenure was linked to the duration of the lease.
“Beyond the period of the lease, the lessee has no security of tenure If the lease is for say 10 years, it goes without saying that the lessee’s security of tenure is for 10 years only. If after 10 years the lessor insists that the lease has been terminated through effluxion of time, no one will suggest that such insistence amounts to an infringement of the lessee’s security of tenure under section 26(1) of the constitution. Perhaps less obvious is the situation where the lease is terminated on notice. But the principle remains the same.
The parties agreed at the outset that the lessee’s tenure can be terminated on notice. What this amounts to, is an agreement that the lessee’s security of tenure will never endure beyond the end of the notice period,” (paragraph 29).
In essence, the court held that a tenant’s right ceases once the lease ends, and termination of the lease is therefore not an infringement of the tenant’s right to security of tenure.
Source: Dr Sayed Iqbal Mohamed
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