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TENANT SUB-LETTED PART (OR WHOLE OF) THE LEASED PREMISES!

The landlord-tenant relationship is often a complex one, evidenced by the continuing string of queries we receive on our webpage in this regard. It is an eye-opener to read as it highlights the various difficulties that can arise. If you are currently a landlord or tenant, do visit the blog page here

  1. The sub-tenant problem

A landlord’s recent post on our website addressed an often misunderstood aspect of residential leases, being the principles regulating sub-letting, the answer to which we will discuss below.  The problem was the following:

“The lease on one of my rental properties was going to expire and 30 days before that, I contacted the tenant and he indicated that he was not renewing but had interested parties to take-over. I subsequently met the interested party, and a new lease agreement was signed commencing 1 July 2016. The former tenant moved out on the 29th June and his deposit with interest was refunded.

A complication then arose, because the former tenant had 2 ladies staying with him, whose names were not on the lease agreement, and who are now basically refusing to move out of the one bedroom. They are now also becoming extremely audacious and not giving me a valid reason for their refusal, but threatening with taking the matter to the Housing Tribunal. “

Before we address our answer to the problem statement, let’s have a look at the formal law relating to sub-letting in the residential lease scenario.

  1. Sub-letting

A lease agreement is in essence a contract between two parties whereby the lessor (owner/landlord) agrees to give the lessee (tenant) temporary use and enjoyment of a thing (house, vehicle, etc) wholly or in part, for remuneration (rent).

A lease agreement in respect of immovable property need not be in writing. (Note though that an amendment to the Rental Housing Act has been passed making it an obligation to reduce lease agreements to writing. The amendment has, as of date hereof, not yet come into operation.)  Once the agreement has been concluded, orally or in writing, the tenant will be a lawful possessor of the leased premises.

The question then arises whether the tenant may sub-lease the premises. Under common law, the answer is yes, a tenant has the right to sub-lease. In such an instance, the “principal tenant” becomes the landlord of the sub-tenant.

However, unless the transaction is specifically structured differently with the consent of the “principal landlord”, the sub-tenant only has a legal relationship with the “principal tenant”. This means that any issues the sub-tenant may have with regard to the premises, be it dampness or faulty wiring, must be reported to the “principal tenant” who is then obliged to address these in terms of the agreement with the sub-tenant.

So too, if the landlord wishes to raise concerns – for example regarding the tenant’s maintenance obligations of the leased premises or address complaints received regarding noise – he will address this with the principal tenant (and not with the subtenant with whom the landlord has no legal relationship).  The same applies with regard to the landlord’s claim for repairs resulting from damage to the leased premises against the “principal tenant” on expiry of the lease.

In practice, a large majority of lease agreements simply exclude the tenant’s common law right to sublease and prohibit this outright or others provide that subletting is only allowed with the prior written consent of the landlord.  It is understandably prudent to ensure that a lease has such a provision, to protect the interests of both the landlord and tenant. 

The solution to the problem statement

It was not noted in the problem statement, quoted in paragraph 1 above, whether or not the right to sub-lease was retained in the lease agreement or not. Nonetheless, clearly the subtenants cannot have greater rights than those granted to the tenant in terms of his agreement with the landlord. Since the lease agreement between the initial tenant and landlord had expired due to the lease period coming to an end, the two ladies no longer had the right to remain there and were thus in unlawful possession of the property.

The landlord would need to evict them by obtaining a court order to that effect. (The Rental Housing Tribunal does not have jurisdiction to order eviction.)

Contact Martin Sheard at 021 673 4700 or at www.stbb.co.za is assistance is required.

www.stbb.co.za

021 673 4700

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