A recent report in the Smith Tabata Buchanan Boyes (STBB) newsletter highlights the importance of keeping tabs on what is happening on your property if a tenant is in place.
The background of the case involved the erection of an advertising billboard on a commercial property in Johannesburg. The property’s owner (a company) had signed a lease with a company allowing it to erect advertising signs on the outside wall of the property. According to the lease agreement, any such structures could only be erected after municipal approval had been obtained.
However, the billboard company erected a large advertising board on the wall of the two-storey building without obtaining municipal approval or submitting building plans. The structure in question stretched across almost the entire width of the building and protruded over the pavement. The municipality deemed the structure unsafe and illegal and served a notice to desist on the owner (the company), which argued that it wasn't the owner of the structure. The municipality then brought an urgent action for an interim interdict prohibiting the owner from erecting or utilising the advertising structure.
The owner of the building defended the matter noting, among other things, that the wrong party had been sued because it was not the owner of the billboard and therefore was under no obligation to comply with the by-laws or the provisions of the National Building Regulations Act. It also argued that it hadn't erected the signboard and in terms of the by-law only the owner of an advertising sign could be held responsible if the required permissions from the municipality were not sought before the sign was erected.
The court disagreed and cited common law noting that when an activity or structure located on a property causes a nuisance or danger to others, it is the responsibility of the owner to halt the nuisance or remove the danger, irrespective of who on the property may have been responsible. Accordingly, the civil law of the municipality was enforceable against the owner of the property.
In other words, the owner of a property is ultimately responsible for the actions of his tenant.
So how does this affect the average landlord in this country? Basically it means that property owners cannot turn a blind eye and ignore tenants who are breaking the law. The owner bears at least some responsibility and as such, should always include a clause in the lease agreement stating that no illegal activities may be conducted on the property and that failure to adhere to this will lead to the cancellation of the lease. Anyone who suspects their tenants are violating the law should report the matter to the police.
There are, of course, ways for a landlord to protect himself from renting out a home to someone who is hell bent on breaking the law.
- Screen all tenants, checking to see if the person wishing to lease the property doesn't have a history of, or a criminal record for, dealing in illegal substances.
- Always insert a clause that allows you to evict if it's found that illegal activities are taking place on the premises.
- Visit the property regularly to ensure the premises are not being used for illegal activities (these include things such as the illegal sale of alcohol and/or drugs).
- Listen to the neighbours and start investigating if they report any suspicious behaviour. Things like an excessive number of random visitors or unusual smells (marijuana has a particularly potent smell) emanating from the property should be looked into.
- A rental property that is being used as a brothel can cause enormous headaches for the owner. Conduct regular inspections if you suspect illegal activities are taking place and take the necessary steps to evict tenants if necessary.
The bottom line is that it's the owner's responsibility to ensure that none of the property he is leasing is being used for criminal activities. It stands to reason that it's in the homeowner’s best interest to ensure his property isn't being used for any purpose other than that stated in the lease agreement. Apart from falling foul of the authorities, there's also good chance a property will not only be abused by unscrupulous tenants, but it will also quickly gain an unsavoury reputation which may well affect the price when it comes time to s