Termination of lease agreement
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Termination of lease agreement
Application to note the termination of a registered lease agreement in terms of s78 of the Deeds Registries Act. Application stipulating the details of a registered lease on a property and notifying of the termination of that lease
Every rental agreement is aimed at full performance by the parties, whether it is a long term lease or even a monthly lease with no termination date, there are mechanisms to bring the agreement to a lawful end with our terminated lease agreement template
The natural way for a contract to terminate is by full performance on both sides or in accordance with the provisions regulating the life of an agreement. However, the breach of an agreement by one of the parties may interfere with its natural course and result in early termination.
The parties may insert provisions into their contract that are designed to regulate the consequences of a breach of the lease agreement11.
Examples include:
• A cancelation clause – giving a right to cancel the contract provided that certain procedures are followed (written notice of intention to cancel unless the breach is rectified).
• A penalty clause to obviate practical difficulties in proving damages;
• An acceleration clause – making the outstanding balance of debt immediately due and payable;
The tenant may cancel the lease with 20 business days notice, without the need to prove that there was a breach of the agreement12. Regardless of the reason for the cancellation of a fixed term agreement the tenant will remain liable to the landlord for any amounts owed in terms of the lease up to the date of cancellation.
The regulations of the CPA entitles the landlord to impose a penalty as compensation for the rent lost as a result of the cancelation, but it cannot be so large as to deter the tenant from cancelling the lease.
Regulation 5(2) provides for factors that can be taken into account when calculating the penalty which includes:
the rent owing for the remainder of the lease, the rent paid until the date of cancellation, the term of the lease, and the potential for the landlord to find another tenant. The penalty can be determined when the lease is cancelled,
and the size of the penalty will depend on whether or not the cancellation results in the landlord incurring loss.
As a landlord there may come a time when you wish to terminate the arrangement you have with your tenant. In circumstances where the tenant refuses to vacate your premises you need to follow a certain legal process to have the tenant evicted.
In order to evict an unlawful occupier from residential property, the procedure in terms of Sections 4 and 5 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (“the Act”) must be complied with. This entails that the landlord has to obtain a court order to evict the unlawful occupier. The main purpose of the Act is to protect both occupiers and landowners by providing for the prohibition of illegal eviction as well as the procedures for eviction of unlawful occupiers.
Steps to follow in the eviction process:
1. Letter of demand and cancellation
It needs to be established whether the lease agreement has come to an end, either by cancellation due to breach by the tenant, or by notice given in terms of the lease. The tenant must be an unlawful occupier, meaning that the lease agreement has come to an end, yet the tenant remains in unlawful occupation of the property without the consent of the landlord.
If the tenant is in breach of a rental agreement the landlord must notify the tenant in writing and afford the tenant 20 business days to remedy the breach, unless specified differently in the lease agreement.
If there is no lease agreement, or the lease is for an indefinite period of time on a month-to-month basis, then the landlord must afford the tenant one calendar month’s notice to rectify the situation.
If the tenant fails to repair the breach within the specified time period and the matter cannot be settled, then the landlord is to issue the tenant with a letter cancelling the lease.
The KwaZulu-Natal Local Division High Court’s recent case law has confirmed that service of proceedings for ejectment constitutes notice to a tenant of a landlord’s intention to terminate the lease agreement. A template of a termination of a registered lease agreement notice can be accessed on www.LawyersEzyFind.co.za.
2. Draft eviction papers
If the tenant fails to remedy the breach and the lease has been cancelled, and the tenant remains in occupation of the premises, then the legal process for eviction should be proceeded with.
The institution of summons together with a notice of motion application should be followed (if the landlord intends to claim arrear rental and damages), coupled with an application for eviction.
The particulars of claim in the summons will contain prayers for the following (where applicable):
• confirmation of cancellation of the lease agreement;
• confirmation of rent interdict appearing on the face of the summons;
• arrear rental up to the date of the summons;
• interest on the arrear rental;
• leave to prove damages;
• interest on the damages;
• ejectment of the tenant (defendant) from the premises;
• costs (attorney-and-client or party-and party, as the case may be).
The notice of motion should contain an ex parte application (part A) and an application for eviction (part B).
An affidavit deposed to by the landlord must be attached to the notice motion which sets out:
• the relevant terms of the lease agreement;
• that the lease agreement was cancelled;
• that the tenant failed to vacate the premises despite the fact that notice of cancellation was given;
• the reasons for the requested eviction and why it is just and equitable to evict the unlawful occupant.
Except in the case of urgent applications, where a different procedure is followed on proper motivation, service of the eviction application should ordinarily precede the ex parte application to court. This is to obtain authorisation and directions in regard to service of a Section 4(2) notice which contains the details of the hearing of the proceedings on at least 14 days notice to the unlawful occupier and the local authority (municipality) having jurisdiction.
Section 4(1) to (5) of the Act sets out the peremptory requirements for obtaining an eviction order:
• only the owner of the property may institute proceedings for eviction;
• at least 14 days before the hearing date, effective notice must be given in writing to the unlawful occupier and municipality having jurisdiction;
• the procedure for serving and filing papers is as prescribed by the rules of court;
• the court has to be satisfied that the service cannot be conveniently or expeditiously effected to grant service in another manner;
• the structure and content of the notice of proceedings must be set out.
In terms of the notice the unlawful occupier (respondent) has five days to oppose the application.
3. Approach the Court for a date
Once the application papers are signed, the clerk of the court is approached to issue a case number and provide a date for when the main application will be heard. When requesting a date the applicant must take into account how long it will take the sheriff to serve these documents, as well as the 14 days requirement above.
The application papers are then taken to the sheriff for service. On receipt of the return of service, the applicant drafts the section 4(2) notice.
The notice must set out the following:
• a statement that says proceedings are being instituted in the court in terms of the Act;
• the date and time of the court hearing;
• the grounds for the proposed eviction must be expressly set out order to be effective;
• that the occupier is entitled to appear before the court and defend the case;
• that the occupier can apply for legal aid;
• the unlawful occupier can go to the court hearing on the day it is set down and defend themselves if they believe the eviction is unfair;
• a person who wants to defend the court action should approach the Justice Centre at the Magistrates Court for assistance.
Upon signing the application the applicant approaches the magistrate at court with the ex parte papers, including proof of service by the sheriff. The court will then be requested to consider the contents of the notice and suggested manner of service and to endorse its approval or disapproval of the application.
Once the ex parte application is granted, the section 4(2) notice may be served on the respondent and the municipality having jurisdiction. The service must take place in accordance with the directions of the court and at least 14 days before the hearing takes place. The 14 day period refers to ordinary days and not court days.
On the return date the court will hear evidence as to the equity provisions as set out in section 4(6) with regard to elderly persons and households headed by women and/or children.
The court must then, in light of all the facts placed before it, make an order as to what is just and equitable to grant an order for eviction considering the provisions of subsections 4(6),(7),(8) and (9) of the Act.
Whether or not there is a lease agreement in place, if a landlord allows someone to reside on the property and accepts rent, this is in fact a lease and will be binding on both parties. The same process for evictions followed above must also be followed when there is no lease agreement between the parties.
Urgent Evictions
The Act allows for urgent eviction applications which can dramatically shorten the time to evict an unlawful occupier, provided that the owner of the property can show that:
• there is a real danger or substantial injury or damage to any person or property if the unlawful occupier is not evicted;
• there is no other effective remedy available;
• the owner is going to suffer more if the occupier stays on the land, than the occupier will suffer if he/she gets evicted.
Prior to the hearing of the urgent eviction proceedings the court must give written and effective notice to the unlawful occupier and the municipality with jurisdiction, which states the owner’s intention to obtain an eviction order against the unlawful occupier.
The notice must state:
• that proceedings will be instituted for an order of eviction of the unlawful occupier;
• the date and time the court will hear the proceedings;
• the grounds for the proposed eviction;
• that the unlawful occupier is entitled to appear before the court and defend the case, and where necessary, has the right to apply for legal aid.
If the court grants the eviction order a date will be provided therein by when the tenant will have to leave the land, and a date on which the eviction will take place if the tenant fails to vacate the land. It is important to note that only the sheriff of the court can carry out the eviction.
Although urgent relief can be obtained, this places a heavy burden of proof on the owner, and even more so when vulnerable groups are involved whose hardship, in the event of an eviction order being granted, may outweigh that of the owner.
Every rental agreement is aimed at full performance by the parties, whether it is a long term lease or even a monthly lease with no termination date, there are mechanisms to bring the agreement to a lawful end with our terminated lease agreement template
The natural way for a contract to terminate is by full performance on both sides or in accordance with the provisions regulating the life of an agreement. However, the breach of an agreement by one of the parties may interfere with its natural course and result in early termination.
The parties may insert provisions into their contract that are designed to regulate the consequences of a breach of the lease agreement11.
Examples include:
• A cancelation clause – giving a right to cancel the contract provided that certain procedures are followed (written notice of intention to cancel unless the breach is rectified).
• A penalty clause to obviate practical difficulties in proving damages;
• An acceleration clause – making the outstanding balance of debt immediately due and payable;
The tenant may cancel the lease with 20 business days notice, without the need to prove that there was a breach of the agreement12. Regardless of the reason for the cancellation of a fixed term agreement the tenant will remain liable to the landlord for any amounts owed in terms of the lease up to the date of cancellation.
The regulations of the CPA entitles the landlord to impose a penalty as compensation for the rent lost as a result of the cancelation, but it cannot be so large as to deter the tenant from cancelling the lease.
Regulation 5(2) provides for factors that can be taken into account when calculating the penalty which includes:
the rent owing for the remainder of the lease, the rent paid until the date of cancellation, the term of the lease, and the potential for the landlord to find another tenant. The penalty can be determined when the lease is cancelled,
and the size of the penalty will depend on whether or not the cancellation results in the landlord incurring loss.
HOW TO EVICT A TENANT WITH A LEASE IN SOUTH AFRICA
As a landlord there may come a time when you wish to terminate the arrangement you have with your tenant. In circumstances where the tenant refuses to vacate your premises you need to follow a certain legal process to have the tenant evicted.
In order to evict an unlawful occupier from residential property, the procedure in terms of Sections 4 and 5 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (“the Act”) must be complied with. This entails that the landlord has to obtain a court order to evict the unlawful occupier. The main purpose of the Act is to protect both occupiers and landowners by providing for the prohibition of illegal eviction as well as the procedures for eviction of unlawful occupiers.
Steps to follow in the eviction process:
1. Letter of demand and cancellation
It needs to be established whether the lease agreement has come to an end, either by cancellation due to breach by the tenant, or by notice given in terms of the lease. The tenant must be an unlawful occupier, meaning that the lease agreement has come to an end, yet the tenant remains in unlawful occupation of the property without the consent of the landlord.
If the tenant is in breach of a rental agreement the landlord must notify the tenant in writing and afford the tenant 20 business days to remedy the breach, unless specified differently in the lease agreement.
If there is no lease agreement, or the lease is for an indefinite period of time on a month-to-month basis, then the landlord must afford the tenant one calendar month’s notice to rectify the situation.
If the tenant fails to repair the breach within the specified time period and the matter cannot be settled, then the landlord is to issue the tenant with a letter cancelling the lease.
The KwaZulu-Natal Local Division High Court’s recent case law has confirmed that service of proceedings for ejectment constitutes notice to a tenant of a landlord’s intention to terminate the lease agreement. A template of a termination of a registered lease agreement notice can be accessed on www.LawyersEzyFind.co.za.
2. Draft eviction papers
If the tenant fails to remedy the breach and the lease has been cancelled, and the tenant remains in occupation of the premises, then the legal process for eviction should be proceeded with.
The institution of summons together with a notice of motion application should be followed (if the landlord intends to claim arrear rental and damages), coupled with an application for eviction.
The particulars of claim in the summons will contain prayers for the following (where applicable):
• confirmation of cancellation of the lease agreement;
• confirmation of rent interdict appearing on the face of the summons;
• arrear rental up to the date of the summons;
• interest on the arrear rental;
• leave to prove damages;
• interest on the damages;
• ejectment of the tenant (defendant) from the premises;
• costs (attorney-and-client or party-and party, as the case may be).
The notice of motion should contain an ex parte application (part A) and an application for eviction (part B).
An affidavit deposed to by the landlord must be attached to the notice motion which sets out:
• the relevant terms of the lease agreement;
• that the lease agreement was cancelled;
• that the tenant failed to vacate the premises despite the fact that notice of cancellation was given;
• the reasons for the requested eviction and why it is just and equitable to evict the unlawful occupant.
Except in the case of urgent applications, where a different procedure is followed on proper motivation, service of the eviction application should ordinarily precede the ex parte application to court. This is to obtain authorisation and directions in regard to service of a Section 4(2) notice which contains the details of the hearing of the proceedings on at least 14 days notice to the unlawful occupier and the local authority (municipality) having jurisdiction.
Section 4(1) to (5) of the Act sets out the peremptory requirements for obtaining an eviction order:
• only the owner of the property may institute proceedings for eviction;
• at least 14 days before the hearing date, effective notice must be given in writing to the unlawful occupier and municipality having jurisdiction;
• the procedure for serving and filing papers is as prescribed by the rules of court;
• the court has to be satisfied that the service cannot be conveniently or expeditiously effected to grant service in another manner;
• the structure and content of the notice of proceedings must be set out.
In terms of the notice the unlawful occupier (respondent) has five days to oppose the application.
3. Approach the Court for a date
Once the application papers are signed, the clerk of the court is approached to issue a case number and provide a date for when the main application will be heard. When requesting a date the applicant must take into account how long it will take the sheriff to serve these documents, as well as the 14 days requirement above.
The application papers are then taken to the sheriff for service. On receipt of the return of service, the applicant drafts the section 4(2) notice.
The notice must set out the following:
• a statement that says proceedings are being instituted in the court in terms of the Act;
• the date and time of the court hearing;
• the grounds for the proposed eviction must be expressly set out order to be effective;
• that the occupier is entitled to appear before the court and defend the case;
• that the occupier can apply for legal aid;
• the unlawful occupier can go to the court hearing on the day it is set down and defend themselves if they believe the eviction is unfair;
• a person who wants to defend the court action should approach the Justice Centre at the Magistrates Court for assistance.
Upon signing the application the applicant approaches the magistrate at court with the ex parte papers, including proof of service by the sheriff. The court will then be requested to consider the contents of the notice and suggested manner of service and to endorse its approval or disapproval of the application.
Once the ex parte application is granted, the section 4(2) notice may be served on the respondent and the municipality having jurisdiction. The service must take place in accordance with the directions of the court and at least 14 days before the hearing takes place. The 14 day period refers to ordinary days and not court days.
On the return date the court will hear evidence as to the equity provisions as set out in section 4(6) with regard to elderly persons and households headed by women and/or children.
The court must then, in light of all the facts placed before it, make an order as to what is just and equitable to grant an order for eviction considering the provisions of subsections 4(6),(7),(8) and (9) of the Act.
HOW TO EVICT A TENANT WITHOUT A LEASE IN SOUTH AFRICA
Whether or not there is a lease agreement in place, if a landlord allows someone to reside on the property and accepts rent, this is in fact a lease and will be binding on both parties. The same process for evictions followed above must also be followed when there is no lease agreement between the parties.
Urgent Evictions
The Act allows for urgent eviction applications which can dramatically shorten the time to evict an unlawful occupier, provided that the owner of the property can show that:
• there is a real danger or substantial injury or damage to any person or property if the unlawful occupier is not evicted;
• there is no other effective remedy available;
• the owner is going to suffer more if the occupier stays on the land, than the occupier will suffer if he/she gets evicted.
Prior to the hearing of the urgent eviction proceedings the court must give written and effective notice to the unlawful occupier and the municipality with jurisdiction, which states the owner’s intention to obtain an eviction order against the unlawful occupier.
The notice must state:
• that proceedings will be instituted for an order of eviction of the unlawful occupier;
• the date and time the court will hear the proceedings;
• the grounds for the proposed eviction;
• that the unlawful occupier is entitled to appear before the court and defend the case, and where necessary, has the right to apply for legal aid.
If the court grants the eviction order a date will be provided therein by when the tenant will have to leave the land, and a date on which the eviction will take place if the tenant fails to vacate the land. It is important to note that only the sheriff of the court can carry out the eviction.
Although urgent relief can be obtained, this places a heavy burden of proof on the owner, and even more so when vulnerable groups are involved whose hardship, in the event of an eviction order being granted, may outweigh that of the owner.
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