Good dayI just need some advice on the f...

Asked by ShaunJ on 19-02-2021 12:39:57
Question posted in the Landlord Tenant Law category relating to Gauteng

Good day

I just need some advice on the following:

2 Years ago I started renting the property I am currently staying in, during the 2 year period my family grew and the house became to small. I decided I would not extend the contract but rather search for a new property. 

After finding the property, I decided to let the landlord know that I will not be extending the contract again, and that we will move at the end of the contract, which terminates on 31 March 2021.

The owner advised me to have a look at the contract and see what the termination period states, at the time my knowledge was that it was 1 calendar month, as there was no such clause in the contract from my memory. 

I decided to read the contract again and try and find the termination clause, which I couldn't find, eventually I stumbled upon it in the renewal section, and the section reads as follows, verbatim:"RENEWAL

If the Lessee wishes to extend the period of the Lease beyond the termination date of31 March 2021 as stipulated in clause 2 above, the Lessee shall notify the Lessor inwriting, at least two calendar months before the termination date, of the Lesseeintention to extend, so that if the Lessor agrees to the extension, the Lessor and theLessee may negotiate the terms and conditions of such further extension. Failure ofgiving the two months termination period by the Lessee gives the Lessor the right towithhold the rental deposit. The Lessor may give the Lessee at least two calendarmonths notice if the property is sold before the termination date of the initial contractperiod."

My question is, should I still give the 2 calendar months' notice even though the contract expires 31 March? If I were to give 2 months' notice, the notice would fall outside of the contract timeframe.

We gave notice last week Friday, but the landlord has not let us known if he accepts this or not, since then he has brought people to look at the property, as he expressed he would rather want to sell the property now as rent it out again. 

This is not via a property agent, but he did the renting to us privately via his broker "privatepracticetrust"

Kind regards

Shaun

0829934242

Information Requested by Lawyer

Posted by Att. Patrick on 19-02-2021 13:00:02

Hi there Shaun 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.

Please keep in mind that our discussions is for general information purposes only. Our engagement on this website does not create an attorney-client relationship. 

Do you mind if I take a moment to review your question? I will come back to you shortly!

Att. Patrick

Answer to the Question

Posted by Att. Patrick on 19-02-2021 13:07:51

When you say that you are renting a property, I assume that it is a residential property.

If the contract ends on 31 March 2021, then that is the termination date of the contract. You would simply move out on that date, and that would be the end of it. Full stop.

The renewal clause which you copy/pasted deals with a situation where the lessee wishes to extend the period of the lease beyond the termination date. But that’s not what you want to do. You want to move out.

The inclusion of the sentence “Failure of giving the two months termination period by the Lessee gives the Lessor the right to withhold the rental deposit” doesn’t make any sense in the context of the clause. So I’m not too sure how it fits in.

My advice is to tell the landlord that this clause doesn’t apply, and that you are legally entitled to simply leave the premises on the termination date, without penalty.

Also, tell the landlord that you expect an outgoing inspection of the property when you vacate, and you want your deposit returned to you within 7 days of you leaving!

Information provided by client

Hi Patrick

Thank you for your reply.

Yes, your assumption was correct, it is a residential property.

I do currently have a suspicion that the owner no longer has my deposit, what would my recourse be if after we move, he doesn't refund me my deposit?

Information provided by client

Hi Patrick

Just a following question.

Thus far my noticed has been by telephonic conversation, but it just struck me that I should probably put it down into writing.

Is there any specific wording that I should be cautious of?

Answer to the Question

Posted by Att. Patrick on 19-02-2021 14:35:25

Q: What would my recourse be if after we move, he doesn't refund me my deposit? --> You would either sue him for the return of the deposit at the small claims court, or you could lay a complaint with the Housing Rental Tribunal who will hear the dispute and make a ruling. The Housing Rental Tribunal is probably the better place to go.

Q: Thus far my noticed has been by telephonic conversation, but it just struck me that I should probably put it down into writing. --> What you can do is to email him now and say: "I refer to the telephone call on XYZ date when I told you ABC..."  In other words, you are confirming (in writing) your oral advices. 

You could say that you advised him that you would not be extending the lease and that you wanted to move out on the termination date. 

Expand the sentence and adjust as necessary!

Information provided by client

Hi Patrick

I hope you are well.

Could you please provide me with contact details to form an official attorney-client relationship? as I am of the opinion that I might need an attorney with the above-mentioned situation. I would much rather prefer if I were to pay you going forward vs. someone new.

Email received from the landlords
"Dear Shaun

With reference 19 February 2021 email received.

Attached note notification of at least two calender months before termination date required.

Also note that the property must be returned to the owner in same condition as on date of 1 April 2019 .

Please arrange exit appointment with us 10 days before expiry date.

Kind Regards ".

Information provided by client

I have replied to them the following:

"Attached note notification of at least two calender months before termination date required. "
-------------------
The renewal clause which you attached deals with a situation where the lessee wishes to extend the period of the lease beyond the termination date. But that’s not what I want to do. I want to move out.

The inclusion of the sentence “Failure of giving the two months termination period by the Lessee gives the Lessor the right to withhold the rental deposit” doesn’t make any sense in the context of the clause. So I’m not too sure how it fits in.Therefore, the clause doesn't apply, and that I am legally entitled to simply leave the premises on the termination date, without penalty.

"Also note that the property must  be returned to the owner in same condition as on date of 1 April 2019 ."
The property will be returned as such.

In the meantime, would you please kindly send a statement of the interest earned on the deposit money during the time of tenancy.
-------------------

The last sentence was added to get a feeler if the landlord has the deposit money, which I doubt, nevertheless, the rental is already paid untill the termination date.

I would just like to have an attorney draft up an email if need be, and I understand that there will be additional charges to this.

Answer to the Question

Posted by Att. Patrick on 23-02-2021 19:45:04

Hi there, 

Apologies for the delay, I think that your email in reply is good. 

Send it, and then stand your ground!

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

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