Asked by Jacques Mouton on 22-12-2023 10:56:11
Question posted in the Landlord Tenant Law category relating to Western Cape

Good day. I'm in a precarious situation. Since I was abducted at the end of March 2023 and the criminals cleared out all my personal and business funds, I have been struggling to start over and make ends meet, however, I have been able to pay my rent up until end of October, but since then I have earned no income yet, but have done a deal that will bring me income in mid January 2024. The Landlord was informed of my situation.I received a lawyers letter this morning instructing me to vacate our home by 10 January 2024, but we have nowhere to go. My wife and I, and our two young girls have lived here for two years. I did receive a letter from the Landlord, who is also the developer to my understanding, that the lease won't be renewed and we have to vacate end of January, which is understandable.My non-payment of rent is not from an unwillingness, but due to unfortunate circumstances, which I know will be rectified next month. I am not sure what my rights are and how to approach the situiation fairly, on top of the fact that I have zero funds to make any decisions.I would need pro-bono legal assistance with this matter, please?Please can you advise?

Posted by Att. Patrick on 22-12-2023 15:05:18

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.

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.

If you have paid rental up to the end of October 2023, then the fact that you didn't pay rental for November and December constitutes a material breach of the terms of your lease agreement, and this entitles the landlord to cancel your lease agreement and demand that you vacate the property. This is clearly what he is doing. 

The only thing is that he needs to do everything by the book, while considering your constitutional rights. 

The FIRST letter which the landlord MUST send you, is a breach letter. In this letter the landlord will say "you are in breach, you didn't pay November rental, you have 7 business days to pay the rental, otherwise I reserve my rights to cancel the lease."

If you do not pay the rental within the time period provided, then the landlord must send you a SECOND letter in which he says "you didn't remedy the breach, so I am therefore giving you 20 business days notice of cancellation of the lease agreement, and I require you to vacate the property on or before the 20th day."

If you fail to comply with this second letter, then the landlord needs to apply to the magistrates court to evict you. The landlord is NOT allowed taking the law into his own hands. He must act through the court, and through the sheriff. 

And what I can tell you, is that it will take the landlord more than 6 months to actually get an eviction order against you ... so do not feel pressured by the landlord to move. 

Having said this, you must also be aware that every day that you remain in the property, the landlord will have a damages claim against you for the "lost rental", so my advice is that you should try to move as soon as possible. 

You can definitely contact the Legal Practice Council in order to request a pro-bono attorney to assist you, and you can also contact Pro-Bono.org who also have attorneys who can assist. 

Since May 2023, we have made the Landlord aware of water running down our walls, damp walls, and water running underneath the balcony door when it rains a lot. The walls contain 25-30% water and we have all been ill all winter due to the dampness. The walls in many rooms are marked with white damp marks and look terrible. After they originally painted it, it just came back worse and has been ignored since then. It is the same with our extractor fan that's been broken since September, they said it's my responsibility to fix a leaking toilet pipe, which is a plumbing issue. This, in my opinion, was the Landlord breaking the lease agreement at the time the rent was paid. Is this info that will help me in any way if I have to go to court for the eviction process? Surely the Landlord also has to be penalized for breaking the agreement?

Posted by Att. Patrick on 28-12-2023 20:50:35

No, that information will not really assist you at this point in time. The reason is that your lease has been terminated, and the landlord has commenced eviction proceedings against you. You must therefore attend court in order to fight the eviction ... or you must move and find alternate premises. The issue here is that you stopped paying your rental.  If you HAD paid the rental, then you could use the damp issue to your benefit.  But you can't use that now, because the lease agreement has been terminated.

I think that you could have used the landlord's breach of the lease (i.e. not maintaining the property) back in May 2023 in order to put the landlord to terms, and then to cancel the lease yourself. But this isn't what you want to do. You want to stay in the property. So, it is too late to argue about the damp walls, etc. 

Thank you for the above response. The eviction process has not started yet. I just received a letter from the lawyer stating I must move by 10th January. I understand, based on the PIE act, that I was supposed to get a letter from the landlord giving me 20 days (work days) to bring rent up to date, before they go all legal on me. The demand was that I vacate on 10 January, but we cannot move. I have, however, been able to make an R25,000 payment to update the rent for December and November, so I am now 8 days behind, while still doing my best to get the funds together for January. Would they then still proceed with the eviction order? Ideally, when the deal I am waiting for comes through and pay out, I need to offer three months rent in advance and stay another 3 months, while searching for the right house to buy and then move out. Would this be an unfair request, and could they deny me that?

We can't move the end of January, because I don't have the funds for a deposit, as the landlord still holds my 1.5 month deposit.

I just need to know what my best options are in the current situation. Funds will come, but it's been delayed.

Posted by Att. Patrick on 08-01-2024 15:16:34

Would they then still proceed with the eviction order? --> They might accept your payments in good faith, and stop the eviction process. OR, they might adopt the attitude that "enough is enough" and might continue with the eviction process even though you've caught up some of the arrear rental. Only your landlord will be able to tell you this. 

What you should have done was to contact the landlord, before making the payment, and doing a deal with him:- give me another chance, and I'll pay you R25k today. 

Yes, they can unfortunately deny any request/proposal you make ... even though it might be very reasonable. 

If you can't move out by the end of Jan, don't. Build up a deposit for a new place. Delay the eviction process by defending the application, then move when you can.