If you and your partner split up and a l...

Asked by MatildaW on 06-01-2020 12:11:58
Question posted in the Landlord Tenant Law category relating to Western Cape
Question value: R 300.00

If you and your partner split up and a lease agreement is in your name only – can you kick her out and change the locks?

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Answer to the Question

Posted by Att. Patrick on 06-01-2020 12:52:02

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.

Look, the first over-riding thing that I need to tell you is that in South African law you are not allowed to take the law into your own hands. If you want to achieve something, you either need the right to do so, or you need to get it done by agreement, or you need a Court Order. 

In your instance, if your partner's name was on the lease (as a co-tenant) then I would say that you can't simply kick her out because she has the same rights of occupation of the property as you. 

However, because her name is NOT on the lease I would say that there might very well be a "sub-oral agreement" of occupation between you and her in terms whereof you agreed to enter into the main lease agreement on the understanding that she would live with you and have the same rights of occupation to the property that you have. 

This means that you can't simply kick her out and change the locks. That would be taking the law into your own hands. 

Rather, what you need to do is either agree with her to vacate the property, or you'd need to get an Eviction Order from the Magistrate's Court in order to evict her. This is however a but of a nightmare because it can take between 4 - 6 months to finalise! The process unfortunately is quite cumbersome and complicated. Any attorney can assist you with this application, which is called a PIE Eviction Application. 

That would be the most correct way of getting her out. 

If you simply lock the house and change the locks, she could get a Magistrates Court Order the same day (so, on an urgent basis) to get back into the house. The sheriff of the court will assist her. She might then be entitled to a protection order which will mean that you might be required to vacate the property until the eviction order and protection order have been finalised! So not the best result. 

My advice is to end your relationship and then ask her to contribute 50% of the rental and costs each month, or to leave the property on her own accord. 

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

Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.

Information provided by client

She has been asked to leave but refuses?
What would you recommend would be dong the quickest way of getting her out?

Answer to the Question

Posted by Att. Patrick on 06-01-2020 13:14:04

Unfortunately then, you either need to convince her to leave by herself or you need to apply for the eviction application! 

Information provided by client

And can you cancel the lease without her knowledge and move out?

Can she do anything?

Answer to the Question

Posted by Att. Patrick on 06-01-2020 14:13:08

Yes, I suppose that you could just cancel the lease and move out without telling her. Especially if the lease is in your name. And no, I don't see how she would have any recourse against you. She isn't on the lease as a tenant, so I'm not too sure how she will sue you because of some sort of right to live there! 

Information provided by client

Two further questions pls. Patrick. If notice is giving to the estate agent and she stils refuses to move out and would rather be evicted - who is liable for the rent?

And can h estate agent refuse to agree to the notice if they no she does not want to move out?

Answer to the Question

Posted by Att. Patrick on 06-01-2020 15:33:57

You wouldn't be liable for the rental because you would have cancelled the lease legally and moved out, so the landlord would have a damages claim against whoever is occupying the property. If you are not occupying it, you can't be held liable.

No, the estate agent can't refuse to accept the notice. 

Information provided by client

Thank you!
Just one more question. Am I entitled to fetch my stuff (furniture ect) even if she does not leave... if she doesnt move with her there?
Regards
Matilda

Answer to the Question

Posted by Att. Patrick on 06-01-2020 22:39:18

If it is your stuff in the apartment, and you cancel the lease, and you leave the apartment, then you are entitled to take your stuff with you.

Information provided by client

Can I still ask questions or must I pay a follow up fee?

Information provided by client

If the lease was signed October 2019 for a year. Am I held liable for the year or not? Can I still give 30 days notice? Or will I be penalised?

Information provided by client

Do i have to pay up until the lease is finished?

Answer to the Question

Posted by Att. Patrick on 07-01-2020 13:17:19

No, if you cancel the lease in terms of the CPA, then you would pay until the date of cancellation, and then you'd pay a reasonable cancellation penalty to the landlord. 

The landlord is NOT entitled to force you to comply with paying rental for the whole lease period.

Information provided by client

Dear Patrickk

I refer to previous correspondent.

I you make her sign an agreement to move out by a certain date and do not move out (even though she is not allowed to stay there. Where do I stand legally?

Do I have the right to remove her then? And change the locks?

Regards

Matilda

Answer to the Question

Posted by Att. Patrick on 20-01-2020 14:42:34

No, you do not have the right to remove her then. You will still need to go the eviction route. 

Information provided by client

If the landlord wants to show the place to new tenants is she allowed to stop them. If the lease is not in her name?

Answer to the Question

Posted by Att. Patrick on 21-01-2020 17:10:39

No, she is not allowed to stop him. But the problem is "what if she does" stop him?

Then, the landlord will need to apply to court for access to the property, or he will need to apply to court to have her evicted from the property. 

So, you're back at step 1. 

Information provided by client

Dear Patrick

Thank you for your e-mail.

If she has prior eviction notices from 2 previous places? Would that have an effect?

Regards

Matilda

Information provided by client

What do you suggest?

Answer to the Question

Posted by Att. Patrick on 22-01-2020 12:33:44

Apply to have her evicted! That's really the only option to get use and possession of the property back!

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