Cape Argus

Know your rights to evict tenant

Depends on whether occupant holds a lease, or has a different right to occupation


AN AGREEMENT about the rental amount for a property is one of the essentials of a lease contract.

There is no lease if the parties fail to agree about the rental, or omit it from their discussion­s and the subsequent conclusion of the contract.

There are instances when occupants are asked to move out, or “evicted”. The occupant may be a relative, friend, even a partner. Without a rental agreement for the property occupied, such a person is not a tenant.

The court makes a clear distinctio­n between an occupant who holds a lease and is therefore a tenant, and someone whose right to occupation is other than a tenancy.

A tenant who fails to pay rental in full, or at all, or on time, is obviously a person who is in breach, but a tenant nonetheles­s. However, a person could have the right to occupy without becoming an owner or paying any rental, the right of free residence in someone else’s property registered against the title deeds (habitatio).

If a person claims to have a lease in perpetuity (“forever”) it is not a lease; it would be another contract, such as emphyteusi­s (Maphango and Others v Aengus Lifestyle Properties Pty Ltd [2011] 3 All SA 535, SCA). Emphyteusi­s would be a specific contract that allows the occupier the right to occupy and to have undisturbe­d use and enjoyment of a property in return for undertakin­g specific duties (rental in kind).

In Jordan v Lowery [2011] JOL 27295 (ECP), the court had to decide whether the respondent, Emily Daisy Lowery, was a non-paying tenant or living in the property by holding the right of free residence.

Jordan bought the property, situated at 23 Thembani Road, Greenbushe­s, Port Elizabeth, from Lowery’s niece in 2006.

One of the conditions of the sale was to allow Lowery to continue to live in the property “until her death, or until such time as she vacates the premises”. However, at the time of the sale, Jordan concluded an oral agreement with Lowery requiring her to pay half the monthly municipal electricit­y charges and abide by all the terms relating to a tenant.

Their relationsh­ip became acrimoniou­s, with Lowery defaulting on the municipal payment.

Eventually, Jordan brought applicatio­n proceeding­s in the Eastern Cape High Court for Lowery’s eviction.

Jordan believed she was legally entitled to evict Lowery for the following reasons:

Lowery did not have her consent to occupy the property and a right to the land.

The lease agreement in terms of which she occupied the property was cancelled. She failed or refused to vacate the property when requested to do so by Jordan. Her actions in occupying the property made it impossible for Jordan to enjoy the use of her property or to sell it.

It was in the public interest that Lowery vacated or be evicted from the property.

Lowery’s response was that she was not a tenant, but her right in and to the property was derived from habitatio – the right of free residence.

The court found that the right to habitatio was not registered against the deed of sale by the parties because of the addition made to the original agreement by confirming that Lowery would be a “non-paying tenant with all rights and obligation­s normally associated with a non-paying tenant”.

Lowery not only defaulted by failing to pay the municipal charges as agreed, but conducted herself aggressive­ly and was violent towards Jordan.

She admitted bringing broiler chickens to the property and cutting down trees. All these constitute­d violations of the agreement that gave Jordan the grounds to cancel the lease.

Judge NGBesher said Jordan had cancelled the lease and was entitled to evict Lowery. Lowery had to vacate the premises within 30 days, the judge said..

Dr Sayed Iqbal Mohamed is chairperso­n, Organisati­on of Civic Rights, and deputy chairperso­n of the KZN Rental Housing Tribunal. He writes in his personal capacity. For advice, contact Pretty Gumede or Loshni Naidoo at 031 304 6451 or email or

 ??  ?? Without a rental agreement for the property occupied, an occupant is not a tenant.
Without a rental agreement for the property occupied, an occupant is not a tenant.
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