A Tenant's Lease Was Not Renewed; They Moved But Left Their Possessions. What Can The Landlord Do?
Category Property Advice
A Landlord says her current tenants' lease has expired, and as the landlord, she gave them more than 40 working days' notice, as required by their contract, that she will not be renewing the lease.
The landlord says the tenants personally signed and acknowledged the notice.
"The lease has expired and it seems they have left the house but all their possessions are still in the house. I currently cannot get into the house. Can I get a locksmith to change the lock so I can get in?
I have read that I need to make every effort to contact them before selling their items, but the main thing at the moment is getting into the house legally".
Anli Koen attorney at Herold Gie Attorneys shares the following advice:
The landlord's right to take legal possession of the premises and tenant's moveables upon the expiration of a lease agreement
On the basis that the lease has expired and the tenants were given adequate notice that the lease would not be renewed, the reader/landlord is entitled to lawfully take possession of the premises. A tenant has a legal obligation to a landlord to vacate the premises at the end of the lease period, leaving it in the same condition as when he originally took possession of it allowing for fair, wear and tear. This also means by implication, that the tenants have a duty to not unlawfully abandon/"store" their personal belongings on the vacated premises.
In terms of section 3 (c) of the Rental Housing Act No. 50 of 1999 (as amended), a tenant has a right against a landlord to not have his possessions seized, except in terms of law of general application and having first obtained an order of court.
Section 5 (d)(i) of the Rental Housing Act No. 50 of 1999 states that a landlord has the right to receive the rental housing property in a good state of repair, save for fair wear and tear and (ii) repossess rental housing property, having first obtained an order of court.
Koen advises the landlord to immediately issue a letter of demand to the tenants (as specified in the lease agreement) at the specified domicilium (i.e. physical registered address as specified in the lease agreement) and deliver it to the tenants by hand (if possible), by registered post and via e-mail confirming the following:
- the lease expired on the applicable date;
- the tenants had a legal obligation to properly vacate the premises on or before the date of termination/expiry which they have clearly not done;
- the tenants are in breach of the lease agreement and the Rental Housing Act No. 50 of 1999 and are acting unlawfully in not (i) returning the keys of the premises to the landlord and (ii) not returning the premises to the landlord in the same condition as at the commencement of the lease agreement due to their personal possessions occupying the premises;
- the tenant is continuing to use the premises for an improper purpose;
- as landlord, she has no legal obligation to "store" their personal possessions on the premises, nor is she obligated to keep them safe;
- on the basis that they (i) have not returned the keys to the property to the landlord and; (ii) are continuing to use the premises for an unpermitted purpose, the landlord is being severely prejudiced as she is unable to obtain access to her property, take clean possession thereof and let the property as "unfurnished" to new prospective tenants;
- she has suffered damages and continues to do so, as a result of their ongoing unlawful action;
- the tenants have 7 (seven) days to remedy the breach (Note: The reader should adhere to the remedy period set out in the lease agreement) and should they not remedy the aforesaid breach, the landlord shall institute summons against them; and
- that she reserves all her rights to institute any further legal action against them.
Once the time period (as set out in the letter) expires and the tenants have not removed their moveable possessions, the reader must issue a summons in respect of (i) damages (i.e. not covered by the deposit) for loss of rental income (i.e. for the period that she was unable to gain access to the property and to find a new tenant and (ii) simultaneously cause the movable assets held on the premises to be attached in accordance with the landlord's hypothec (i.e. real security securing the tenant's obligations in terms of the lease agreement).
Author: P24
