Hi,

My son and I jointly own a property which has a granny flat in the yard. 

We took in a tennant on a short term (3 months) basis and have a contract to that effect. The reason we went for a short temr lease was that we did not know if having a tennant would work with the layout of the property. The lease period was from 1 January to 31 March 2019.

Due to a lot of problems we have had with the tenant, and the fact that the layout of the property does not really lend itself to this living arrangement, we notified the tenant in writing on the 2nd February, that we would not be renewing the contract after 31 March.

The tenant has not paid rent for February and says she does not intend to. She also claims the lease period was for a year and does not intend to move out by 31 March.

I know that we can apply for an eviction order, but that can be dragged out for months or years and in the meantime she is squatting on our property.

I want to know if there is any legal reason why I cannot move into the flat myself on 1 April. I will not kick her out - just simply move in with her.

The way I am reasoning is:

1. I am the owner of the property

2. She does not have a valid lease agreement after 31 March

3. She has not paid her rent for February

4. She will not like living with me 

So what legally prevents me from moving in there.

Hi there and thank you for your question,

I am a practicing attorney based in South Africa and I will assist you with your question. Please feel free to ask as many follow up questions in order to clarify your question. If you have a new question, you must please open a new thread.

There is a common law rule in South Africa that says "you can't take the law into your own hands", or put differently, "you can't resort to self-help". That means that you can't simply kick somebody out just because you say that there is no lease; you've got to go through the right channels.

I don't think that you can simply move into the property because one of the essentials of a rental agreement is that you give the person (the tenant) free and undisturbed use and possession of the rented item.

That means that you can't rent the flat to somebody, but then let somebody else stay there as well. If you do, then you have not given the tenant free and undisturbed use and possession of the flat.

The same applies to you. 

If you move in to the flat, then the tenant COULD approach court (on an urgent basis) and apply to kick you out. That order will be granted because of the "you can't take the law into your own hands" rule, and the court will order that the staus quo (the set of circumstances) which existed before will need to apply again. i.e. you must leave; your tenant can stay; and you must then apply to evict the person.

So, at the end of all of this, you're only "REAL" option is to evict the person and at the same time hold them liable for damages to staying in the property. You'll need to do this either in the Magistrates Court, most probably with the assistance of a junior lawyer!

I can't refer you to a specific lawyer, but I can direct you to www.southafricanlawyer.co.za, where you can find a list of qualified lawyers in your area who will be able to assist you further!

If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.

Att. Patrick

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