Severing rental contract via SMS

This week, the Property Poser panel deals with a rental issue from a reader whose landlord sent her an SMS instructing her to vacate his property by the end of the month.

She admits that, since her husband has been retrenched, they have been in arrears with the rental. The couple had offered to repay the amount in instalments or set up a debit order, but received no response.

Schalk van der Merwe - Rawson Properties

Schalk van der Merwe – Rawson Properties

The reader would like to know whether they could give their landlord one month’s notice or whether they should wait for him to obtain a court order evicting them.

According to Schalk van der Merwe from Rawson Properties Helderberg, the non-payment of rental means the reader is already in breach of the lease agreement.

“Depending on the terms of the agreement, the landlord would usually give her notice of the breach, affording her an opportunity to rectify it.”

Van der Merwe says if the lease was concluded after April 1 last year and is for a fixed period, the provisions of Section 14 of the Consumer Protection Act will apply.

“This section only allows a landlord to cancel a lease once the tenant has been given 20 working days’ notice to remedy the breach but fails to comply.”

Failure to pay the arrears or make suitable alternative arrangements would in all likelihood result in the landlord cancelling the lease, says Van der Merwe.

“Whether or not these steps have been taken by the landlord is not made clear by the reader. She only mentions the text message ordering them to vacate the premises within 10 days.”

In terms of the provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land (Pie) Act, Van der Merwe says no one may be evicted from a property without a court order.

“A landlord wishing to evict an unlawful occupier has to institute legal action to initiate the procedure.”

Lucille Geldenhuys Attorneys

Lucille Geldenhuys Attorneys

Lucille Geldenhuys from Lucille Geldenhuys Attorneys in Stellenbosch says a notice authorised by a magistrate must be served on the unlawful occupier as well as the municipality, at least 14 working days before the eviction hearing. “This gives the tenant the chance to oppose the action.”

Geldenhuys says a court hearing will determine whether the landlord is entitled to an eviction, taking into account issues such as the rights and needs of children, the elderly and households headed by women.

“If the court finds that the owner is entitled to an eviction order, it will also assign a date by which the tenant must vacate the premises. The owner may call in the sheriff to remove the occupier, should he or she fail to do so.”

In this instance, says Geldenhuys, it would appear that the landlord might be acting unreasonably by not allowing the reader to pay off the arrear rental in instalments.

“If the reason for the arrears is the retrenchment issue, and if the reader has offered to settle the debt in another manner, then it would seem unlikely that a court will grant an eviction order.”

Geldenhuys says the reader may consider consulting an attorney to advise her on her rights, or she may use the protective measures in the Rental Housing Act should she feel that her rights are being negatively impacted upon.

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