When a property is sold in South Africa with tenants who refuse to vacate, navigating the legal landscape requires understanding your rights, the tenant's rights and the appropriate eviction procedures.
Common law principle: Huur Gaat Voor Koop
In South African law, the principle of huur gaat voor koop, meaning "the lease survives the sale”, applies. This means that if a lease agreement was in place before the property's sale, the tenant's rights remain intact, and the new owner assumes the role of landlord until the lease expires.
However, the common law principle can be overridden by a clause contained in a lease agreement.
A lease can include provisions that allow the landlord to cancel the agreement in the event of a sale. These provisions must be clearly stated in the lease agreement and must comply with the Rental Housing Act 50 of 1999 and other relevant legislation, such as the Consumer Protection Act 68 of 2008.
If the lease includes a clause allowing for termination upon sale, the landlord must still provide the tenant with reasonable notice before terminating the lease.
Should the tenant refuse to vacate the leased premises on termination of the lease, alternatively, on reasonable notice as per the lease agreement brought about by the sale, then the new owner will need to ensure that they understand the steps to be taken to enforce his/her rights.
Steps for the New Owner When Tenants Refuse to Vacate the leased premises:
Firstly, it is imperative to review the Lease Agreement: Determine the type of lease, fixed-term or month-to-month, and any clauses related to early termination or sale provisions.
Secondly, communicate with the Tenants: Engage with the tenants to understand their intentions and inform them of the property's sale.
Thirdly, issue proper notice (if not already given by the previous owner as a result of the sale): If the lease has expired or is month-to-month, provide the tenant with a written notice to vacate, adhering to the notice period stipulated in the lease or, if unspecified, a reasonable period which is typically one calendar month.
Fourthly, initiate Eviction Proceedings if necessary: Consult attorneys to initiate proceedings on your behalf and obtain an eviction order for the eviction of the tenants from the leased premises.
Preventative Measures for Buyers
To prevent a situation like this one from occurring, buyers before entering into a sale agreement should:
- Ensure the Sale Agreement includes clauses that stipulate that the seller is responsible for ensuring vacant occupation upon transfer or will bear the costs of eviction if tenants refuse to vacate.
- Understand the Lease Terms: Request and review existing lease agreements to understand tenant rights and obligations.
- Negotiate Early Termination: If possible, negotiate with tenants for early lease termination or relocation assistance to facilitate a smoother transition and transaction.
Conclusion: Purchasing a property with existing tenants who refuse to vacate is not uncommon in South Africa. However, buyers must act within the framework of the law, respecting tenant rights and following the appropriate legal channels. Being proactive and informed can prevent costly legal disputes and ensure a smooth transition of ownership.
Reference list
- Soffiantini v Mould 1956 (4) SA 150 (E).
- De Jager v Sisana 1930 AD 71.
- PIE Act (Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998).
- Pure Capital Property Trading CC v Hanslo and Others [2018] ZAWCHC 137. Retrieved from https://www.saflii.org/za/cases/ZAWCHC/2018/137.html
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