Tenant ducks and dives after ditching occupied flat

For eight years, landlords Sharyn Samra and her husband, Clive, had a model tenant living in their furnished apartment at Tuscany Villas, West Beach, until he allowed his girl-friend, now his ex, to move in, and dumped her there before the lease expired.

“Basically he abandoned his partner, knowing that she did not have a full-time job. The tenant did not honour his contract with us, but would we have been able to evict them the moment the lease expired?” Ms Samra asked.

It is a complicated story involving the Housing Tribunal, the ex-girlfriend “who became a squatter and the police helping her remove her belongings as well as some of our furniture, breaking open the garage and destroying a door”.

The lease was drawn up by letting agents before the Samras decided to manage the apartment themselves.

“Part of the lease states there must be a proper handover but the tenant ignored our emails and when he finally gave us a key, it didn’t fit as his girlfriend had changed the locks. Although the apartment is furnished, he stored some of our furniture in the garage, so he has a lot of his own furniture and appliances in our flat, which he would have to remove,” said Ms Samra, who claimed that the squatter was an “intern estate agent who was able to exploit the lease to her benefit”.

Michelle Dickens, managing director of Tenant Profile Network (TPN), a registered credit bureau that also vets prospective tenants for landlords, said this case highlights just how important it is to use a lease agreement that is standardised in the industry.

“The TPN LeasePack (www.leasepack.co.za) for residential and commercial properties is constantly updated with new legislation and the latest in case law,” Ms Dickens said.

Mr Samra had a meeting at the tenant’s office.

“However, since then he has not responded to any calls but he knows that his ex is no longer living there and he told us to take the boxes in the apartment to the dump. We are talking rooms full of boxes, some with his name on,” Ms Samra said.

Ms Dickens said the lease agreement is still in place between the landlord and the original tenant and there is no legal relationship between the “squatter” and the landlord as the previous lease has not been cancelled.

“This is the same as when parents rent a property for their student son to stay in while he is at university. Only the party who signed the lease agreement (the parents) can be held liable,” Ms Dickens said.

“Where the occupant or tenant changes the locks, it is considered an alteration to the property and is a material breach of the lease. The landlord should have placed the tenant, not the occupant, on terms to reinstall the original locks. It is important to note that the landlord cannot access the property without a court order or the tenant’s permission.

“If the lease agreement has not been terminated or cancelled formally, it continues on a month to month basis according to the Rental Housing Act. The tenant and not the occupant is liable for the rental amounts. Therefore, the occupant cannot simply be removed without formally cancelling or terminating the lease agreement and granting of an eviction order by the court. Even though this person is considered a ‘squatter’ in the eyes of the landlord, the original tenant must be evicted together with the occupant of the property.

“The lease agreement is in the name of the tenant and he is thus the responsible party.

“An eviction can only be done legally through the courts and in this instance, the process set out in the Prevention of Illegal Evictions Act. Any other form of eviction is considered illegal and the landlord could get into serious trouble for doing so. There needs to be a valid court order in place to evict any party from a premises. Section 23 of the constitution also references that a court order is required to evict any person from any property,” Ms Dickens noted.

She pointed out there is nothing stopping any person from abandoning a co-habitant in a property. That is why it is so important to properly vet your tenants beforehand and act proactively and quickly when something like this happens.

“Time is money in this situation. Many landlords are completely unaware of current eviction law and what to do when things go wrong. The best thing you can do is seek legal advice from an eviction specialist attorney,” Ms Dickens explained.

The landlords can sue the tenant for back rent and damages but not the squatter as the damages stem from the lease agreement.

They would be able to sell his furniture if they secure a court order to do so.

“A rent interdict summons may be used to attach the goods on the property. However, the landlord should consider that a sheriff’s auction is probably going to cost more than the actual money made from the sale. People rarely want second-hand microwaves. Or they could blacklist the tenant with TPN or any other credit bureau.”

Visit www.tpn.co.za, call 0861 876 000 or email helpdesk@tpn.co.za for more information.