You can’t just boot your tenant

Private Property South Africa
Lea Jacobs

Let’s get straight to the point: new owners of property who have become landlords in the transfer process cannot evict a tenant if a lease agreement was in place when the property was sold. Sorry guys, but it’s true. You cannot force a tenant to move out simply because a property has changed hands. In fact, tenants who are told under these (or any) conditions that they have to move before the end of their leases are entitled to approach the Rental Housing Tribunal for legal opinion and resolution.

While we’re on the subject, the original landlord cannot in these circumstances withhold a deposit or part thereof for any reason. The seller must transfer the tenant’s deposit to the buyer, who must place the money into an interest-bearing account. This makes perfect sense as, once he has sold, the previous owner has no interest in the property whatsoever and the likelihood of him paying to repair something that he no longer owns is more than a little remote.

Disclosure

Let's get back to the first point. A seller must disclose to a buyer that there is a lease in place and must also indicate how long the lease agreement has to run. This obviously could affect the buying decision if the new owner wants to move into the property as soon as the transfer has gone through, and it may be an idea for those who are considering selling to rent out their properties on a month-to-month basis. That said however, landlords should be aware that most tenants want the security that longer leases offer and balk at the idea of living in a home that they could soon be asked to vacate.

Oh and while we’re talking about selling: a landlord cannot just allow estate agents or prospective buyers to view a tenanted property at will. Tenants have to be informed when people are going to be viewing the property and before you ask, have every right to be present at the time. That said, there have undoubtedly been times when tenants “hijack” a viewing and in attempt to put buyers off, exaggerate problems, real or imagined. If a landlord believes that this is possible, he should warn the agent, who should in turn inform the prospective buyers of the situation.

Be reasonable

While tenants must provide “reasonable” access, landlords must understand that their idea of reasonable may not be shared. You can't for example expect a tenant to allow a property to be on show every Sunday for a month. Show houses can be extremely disruptive given that the tenant has to spring-clean the home and vacate the property for most of the day. Likewise, expecting a tenant to be happy when prospective buyers want to view the property in the evening after work may cause problems if the tenant’s life is being disrupted on a continual basis.

Keeping the lines of communication open is going to help matters enormously. Discuss the fact that the property is going to be put on the market, find out when would be the most convenient time for buyers to view the home and reassure the tenant that his lease agreement will not be affected by a sale. Perhaps the most important point of all is to remember that the tenant has rights and landlords could find themselves in deep trouble if they decide to flout the law inherent in the Rental Housing Act.

For further information, contact The Rental Housing Tribunal: 011 355 4000 or google the term to find the provincial office closest to you.

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