De Waal Esterhuyse

attorneys | conveyancers | notaries



JULY 2015 NEWSLETTER

  1. COST CLAUSE IN LEASE AGREEMENTS



We note that some Lease Agreements do not make provision for legal costs on a scale of "attorney - client" or some leases only refer to 'tenant being liable for legal costs'. In order to be able claim and obtain costs that include prelimanary steps and expenses, it is imperative that the Lease Agreement refers to cost on an "attorney - client" scale.

  1. NOTICE LETTERS

Ensure that the 'Notice of Breach' and 'Notice to Cancel & Vacate' are dated & issued correctly.

▪ reach letters must allows for 20 working days in which to remedy the breach;

▪ Don't send the Notice to Cancel & Vacate before Day #21;

▪ The Notice to Cancel & Vacate must be issued on the preceading '20 day letter';

▪ The Notice to Cancel & Vacate cannot be issued if the tenant has remedied the breach;

▪ Don't negotiate 'amended date to vacate a month later'.


Recent example: Tenant put in breach on 22 January 2015. The Notice to Cancel and Vacate delivered on 15 April 2015. Eviction process started.

The tenant appears at Court on the hearing date, and submits proof that the breach was remedies 2 days after being given Notice of Breach.

Problem: Tenant was not in breach when lease was cancelled. Has a valid defence (paid at relevant time).

Result: We have to negotiate and make lenient consessions to agree to a date to vacate, otherwise the matter will be defended and causing months of delay.

  1. CORRECT BREACH AMOUNT / FINES

▪ Ensure that arrears amounts is correct. Also check if tenant is not paying the owner directly.

▪ If fines are imposed, ensure tenant on taking occupation was supplied a copy of complex rules.


Relevance: When served with a 20 day breach notice for outstanding amounts that has wrong amount / fines: tenant is wrongly put in breach. Also,if a copy of the complex rules was not handed to tenant, he is not liable for fines in court action.

Problem: Tenant has a valid defence against the eviction process.

Recent Example:

Tenant paid the owner directly. Problem: He is not in unlawful occupation and has a defence.

Result: We have to negotiate and make lenient consessions to agree to a date to vacate, otherwise the matter will be defended and causing months of delay.

  1. SERVICE PROCEDURE

Some Magistrates Courts, i.e Wynberg as a standard practice insists on service on all occupants by name. Cape Town magistrate's court is becoming more insistant upon service on "other occupants" as well as the tenant.

Relevance: You need to supply us with the names of occupants. Even if it is first names.

  1. PROTECTED PERSONS

The PIE Act has a protected class of persons: namely disabled, sickly, elderly or minors, as well as households headed by woman.

Relevance: It concerns the discretion of the magistrate, regardless of the amount for arrear rental outstanding to a landlord; to make a reasonable and fair finding as to a date to vacate the premises. Should you be aware of "protected persons" being in occupation of a property on which we are applying for an Eviction Order, please advise us accordingly. We must mitigate this factor and address it in our initial Founding Affidavit.


Recent Example:

Respondent brings his elderly father who resides with him to court. He suffers from Alzheimers.

Result: Magistrate uses his discretion and makes a ruling of 5 months to vacate.

Lesson: Make us aware of this to include more information in the Founding Affidavit to mitigate this.


Recent Example:

Agency informs us that the tenant lost his job and has Motor Neuron Disease.

Lesson: We include the information emphasizing the financial loss and leniency shown by owner, in the Founding Affidavit to mitigate this.


Recent Example:

Agency informs us that the tenants have 6 forster children living with them.

Lesson: We include the information emphasizing the steps to accommodate the tenants and putting tenants in a bad light in the Founding Affidavit.



  1. SHERIFF COSTS

The Sheriff of the Court has since April 2015, dramatically increased their fees by an average of R 400.00 per service. This increase is partly due to the number of attempts to serve documents on the Respondent.

Relevance: Assist us by telling us beforehand if access to a property or complex is a known issue or if you are aware that the tenants/occupants may attempt to avoid servicing by the sheriff.


▪ The cost of ejectment on a warrant has increased since April 2015 to at least R6 000.00 depending on whether extent of household to be removed / lift in complex / what floor, etc.


Relevance: Impatient as all owners may be: there are serious costs if the Sheriff throwns out the occupant. It pays if the owner hassles & harass to persuade the occupants to leave.




Douw Steyl

Tel: 021 557 2967 Fax: 086 538 4752

e-mail: douw@esterhuyse.co.za;

Karin at douw@edsconsultants.co.za;

"LANDLORD PROTECTION SPECIALISTS"