Question posted in the Landlord Tenant Law category relating to Western Cape
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?
Message from the Attorney
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
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Message from the Customer
What would you recommend would be dong the quickest way of getting her out?
Message from the Attorney
Unfortunately then, you either need to convince her to leave by herself or you need to apply for the eviction application!
Message from the Customer
Can she do anything?
Message from the Attorney
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!
Message from the Customer
And can h estate agent refuse to agree to the notice if they no she does not want to move out?
Message from the Attorney
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.
Message from the Customer
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
Message from the Attorney
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.
Message from the Customer
Message from the Customer
Message from the Customer
Message from the Attorney
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.
Message from the Customer
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
Message from the Attorney
No, you do not have the right to remove her then. You will still need to go the eviction route.
Message from the Customer
Message from the Attorney
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.
Message from the Customer
Thank you for your e-mail.
If she has prior eviction notices from 2 previous places? Would that have an effect?
Regards
Matilda
Message from the Customer
Message from the Attorney
Apply to have her evicted! That's really the only option to get use and possession of the property back!