LANDLORD AND TENANT Part 3

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Do tenants have a 7 days grace period to pay the rent?
There is no law which provides a tenant a seven day grace period to pay their rent.
A landlord is entitled to be paid by the tenant in the proper amount, and at the proper place and time.The lease agreement will note the rent date due and most lease agreements will specify that the rent is due and payable in full, free from deductions.

If the lease agreement stipulates that the rent needed to be paid on or before the first of each and every month, then the tenant would be in breach of contract if the rent was still outstanding on the second of the month.

Can a lease be cancelled early or if the property is sold?
In the first instance refer to the lease agreement, specifically to any cancellation clause.
If the lease agreement is for a fixed period and there is no cancellation clause, the tenant cannot cancel the lease except if the landlord breaches the lease, or agrees to the early cancellation of the lease.
If the lease is on a month to month basis then a calendar months notice is required to cancel the lease.
If the tenant fails to pay the rent the landlord can take action to demand the rent, cancel the lease or obtain a court order and have the sheriff of the court forcibly evict you, should you fail to heed the eviction order.

If the property is sold the tenant is protected by the common law ‘huur gaan voor koop’ If the property is sold, the new owner becomes the landlord and all the terms of the existing lease are enforceable. The owner cannot cancel the lease, but must wait until the end of your existing lease period. The new owner is also responsible to refund your deposit less any claim for damage.
Can a tenant claim for improvements made during the lease?
The position differs in the case of immovable and movable property.
Immovable property

Tenant can claim for:

  • Necessary improvements to protect or preserve the property (and labour costs),
  • Structures affected with the consent of the lessor (only bare – not labour costs),
  • Ploughing, tilling and sowing seed on agricultural land (the cost thereof).
  • The claim arises only once the lease is terminated and lessee vacated the property.
  • Lessee has no right of retention over the property until compensated.
  • Lessee may (in the absence of a contrary agreement) :
  • Break down structures he erected and remove such material,
  • Harvest and remove all crops he planted,
    Notes: Lessee may only perform above actions before expiry of the lease. Anything that remains after expiry is for the benefit of the owner.

If the lessee makes any improvements to the property with the owners consent he would be entitled to compensation when the lease expires. The owner may be entitled to the improvements, but is not allowed to receive them without paying compensation, because it would be unjust enrichment. This is a principle of law referred to as unjust enrichment, which holds that no person should profit through causing loss to another.
Movable property

Tenant can claim for:
Necessary improvements to protect or preserve the property (costs expended),
Useful improvements, with or without the consent of the lessor (lesser of cost or enhancement value).
The claim arises only once the lease is terminated and lessee returned the property.
The court has discretion to disallow a claim for useful improvements.
Lessee has a right of retention over the property until compensated.
Lessee may remove useful improvements without placing property in worse condition than it was prior to when the improvements were made, instead of compensation.

My lease has come to an end. The owner now wants to use my rental deposit for maintenance and repairs that go beyond what is called ‘fair wear an tear’ from reasonable use of property. What are my rights?
Fair wear and tear’ is defined as ‘deterioration or depreciation in the value of the property by ordinary or reasonable use’. The rule of thumb is that if a tenant has damaged something that does not normally wear out , or has substantially shortened the life of something that does wear out, the tenant may be charged the prorated cost of the item, taking into account how old the item was and how long it may have lasted otherwise, and the cost of replacement. So while ordinary wear to carpets should not count against the tenant, large rips or indelible stains would. Any deduction for their replacement should take into account their age compared with the expected time of use.A landlord may also deduct cleaning costs from the deposit but may only charge for cleaning that is necessary to satisfy the ‘average’ or ‘reasonable’ tenant. The landlord must look at how well the tenant cleaned the rental unit on departure, and may charge cleaning costs only if the unit, or portion of it, was left in a clearly substandard condition. -lawyer.co.za

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