Thu, 28 May 2020

A landlord asks if his current tenants will still be able to move out at the end of the month as planned, and whether his new tenant's movements to the new property would be restricted.

He writes:

I have tenants that are 2 months overdue. They were planning on moving out at the end of the month but now with the lockdown would that still be possible? I already have new tenants signed for 1 May 2020. Would his personal movements to the new property be restricted? Would the new tenant be hindered from taking occupation since I guess legally he has a right to property now?

Duane Marais, Attorney and owner of Duane Marais attorneys responds:

Question:

Answer: In a recent judgement handed down by the Honourable Acting Judge Roelofse AJ on 27 March 2020, in the Mpumalanga High Court, the court dismissed the Applicants application to exempt him from the travel restrictions contained in the COVID-19 Regulations. The applicant sought an order to exempt him from the travel restrictions to visit his mother, who resides in another province. The applicant wanted to assist his mother with the funeral arrangements of his late grandfather.

The court's attitude towards the COVID-19 pandemic, which shall in all likelihood be shared by all our Superior Court, can be summarised in paragraph [15] and [16] of the judgment, attached herewith for quick reference in that, despite having sympathy with the applicant, the court must uphold the law and therefore dismissed the applicant's application to exempt him from the travel restrictions contained in the COVID-19 Regulations.

Judgment Karel Willem Van H..

If we take a closer look at your query, by interpreting the literal meaning of the words contained therein, the following is clear:

" means that the landlord failed to approach a legal practitioner within a reasonable time period, after the landlord became aware of lessee's alleged breach of agreement for non-payment of the monthly lease amount, for the purposes of urgency discussed below"means the end of March 2020. Same falls within the lockdown period and the aforesaid judgment emphasises the importance of social isolation during the lockdown period.

It is not clear whether either of the parties cancelled the lease agreement, by providing the other party with the appropriate notice, contained in the lease agreement otherwise prescribed by law.

On 24 March 2020, Chief Justice Mogoeng Mogoeng in terms of section 8(3) of the Superior Courts Act, 2013 delegated his powers, through a letter attached hereto, to all Heads of Court to issue such Directives, as would enable access to court in relation to the following matters:

Urgent matters;Bail applications;Maintenance and Domestic Violence matters; andCases involving children

The aforesaid matters are considered as "essential" matters, where there is a probability that same might be heard by court during the lockdown period.

In light of the above, the landlord should be advised of the following:

1. It is doubtful whether the landlord will be able to convince a court that the aforesaid matter is urgent, based on the fact that the landlord was aware of the lessee's alleged breach of agreement for a period of at least 2 months. Should the landlord approach a court on an urgent basis, the landlord would probably run the risk of obtaining an adverse cost order against the landlord.

2. In the event that either party failed to provide the other party with written notice to vacate the premises, it will be prudent for the landlord to consult with a legal practitioner, through Skype or another electronic forum during the lockdown period, in order to draft and deliver a notice to the lessee.

3. In the event that the landlord or lessee provided the other party with notice (preferably in writing) to vacate the premises, it is best to wait out the lockdown period before taking any legal action against the lessee for either:

a. Instituting eviction proceedings, if necessary;

b. Enforcing the landlord's hypothec, which means that the landlord, by obtaining an order of court, may instruct the sheriff to attach the lessee's movable property, in order to secure the outstanding lease payments relating to the lease agreement;

c. An action for damages, relating to the period the leased premises was occupied by the lessee; and/or

d. Any further/alternative relief available to the landlord.

Question:

Answer: 01 May 2020 falls outside the lockdown period and therefore your new tenant should have unrestricted access to the premises from same date.

Should the lockdown period be extended, the aforesaid would still be applicable, in that the previous lessee will not be able to move out of the premises and the new tenant will not be able to move into the premises.

Should the notice in terms of the lease agreement overlap the starting date of the new lease, there might be grounds for an urgent eviction application, based on the previous lessee's unlawful occupation of the premises due to the lessee's alleged breach of agreement.

Despite the aforesaid, each case differs in terms of the surrounding circumstances thereof and it is best to involve your legal practitioner, as soon as possible. in order to prevent circumstances where you end up on the wrong side of the law.

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