CREDITS
By Ms. CA Annadale
Months go by with no payment for lease of your rental property, it is vital to navigate the arrear rental matter with caution to carefully protect your right.
The late or non-payment of lease will constitute breach of the lease agreement however it’s important to note that the lease agreement will guide you on how to deal with breach.
What is a breach?
A breach of the lease agreement is a clause that is entered into lease agreement that is signed by a Landlord and their respective Tenants, whereby the said clause will guide the Tenant or the Landlord on how to deal with a situation when either party is in breach of the said agreement.
A breach clause will come into effect if either party fails and/or refuses to act in accordance with the agreement, for instance the late or non-payment of rent will constitute a breach.
If one of the parties has breached the agreement the breach clause makes provision for the breach to be remedied alternatively the breach clause will guide the affected party on how they need to deal with the breach..
The agreement will set out how the effected party has to inform the other party of the breach and how the breaching party will need to remedy the breach.
The payment of the rental arrears will have the effect that the tenant is no longer in breach.
If the rental remains unpaid ( after the Landlord enforced the breach clause ) the contract may be canceled and the Tenant will be requested to vacate the property.
If the Tenant refuse to vacate the property the Tenant will be an unlawful occupier and the Landlord will need to consider an eviction application.
The Landlord cannot take the law into his/her own hands in order to facilitate an eviction.
NOW WHAT CAN I DO AND WHAT SHOULD I NOT DO?
WHAT TO DO
• Maintain open communication:
- Inform the Tenants/Landlord as soon as you become aware of the breach.
- Ensure that the notice is delivered in the prescribed format as per the lease agreement.
• Allow the Tenant/Landlord to remedy this/her breach as prescribed in the lease agreement.
• Always Consult an Attorney in order to ensure that the correct process is followed.
It is in your best interest to seek the professional advice of an attorney before attempting to send out any legal notices to the Tenant, as it is important to know how to act in accordance with the rental agreement.
WHAT SHOULD I NOT DO
• Do NOT inform the Tenant he must be out by the end of the week:
- There is certain rules and regulation relating to the cancellation of a fixed term contract.
- If there was a material breach on the part of the Tenant to comply with the lease agreement certain notices must be delivered to the Tenant in the prescribed manner.
- The lease agreement will dictate the time limits that need too be complied with.
• Do NOT Harass the Tenants:
- Showing any form of harassment towards the Tenants and attempting to intimidate them will not just unnecessarily hinder the process but may result in legal action against yourself.
• Do NOT take the matter into your own hands:
- This is an absolute no go, do not try and resolve the issue without proper documentation.
- Some Tenants might go as far as changing the locks on the gates of the leased property or terminate the electrical supply.
- When the locks are changed or law is taken into your own hands, the Tenant is well within their rights to bring an application known as a spoliation application.
- Spoliation is the wrongful deprivation of another person’s undisturbed use and possession.
- Once a spoliation application is successful you will be penalized with a cost order whereby you will need to pay the Tenants legal fees.
It is therefore advisable to seek the assistance of an attorney in the event that you find yourself in a position where your Tenant/Landlord has breached the lease agreement whereby non-payment of rent will constitute breach.
Disclaimer
This article is not intended to provide legal advice; the contents of this article is only to provide a general understanding of the law. It is always advisable to seek the advice of an attorney before acting upon what is written in this article.
