A Property24 reader asks:
I would like to ask a question about a delinquent tenant...
I would like to ask a question about a delinquent tenant...
During the course of the last year I experienced repeated and ongoing problems with my current tenant, from illegally harbouring up to 10 people in one of the garages and sub-letting that part of the property to them, to various noise disturbances that have resulted in fines imposed by the HOA, to illegally parking a car wreck outside the house. In addition, on at least two occasions the police have had to be called for domestic assault altercations.
He has paid the rent late consistently, sometimes as late as the 20th of the month. Finally his lease is ending, and as per the lease stipulation I have served him 2 months’ notice that the lease will not be renewed. He has now completely stopped paying the rent.
He no doubt is aware that to formally evict him will take at least 2 months and he simply ignores the letters I have had hand-delivered from my attorney.
What recourse do I have against him, if any, and is there any realistic chance I will get the last 2 months of rent from him? Is it worthwhile following a formal approach through the firm of attorneys who I use, should I consider the small claims court or is it simply a waste of time and should I chalk it up to experience?
His deposit is held by the rental agent, who is not in the slightest interested (the tenant and rental agent are personal friends) and will in no way assist. When approached the Estate Agents Affairs Board (EAAB) I was told that the rental agent had not paid his last 3 years of membership with the EAAB and as such did not have a current fidelity certificate and was operating illegally anyway.
Do I have any recourse against either the tenant or rental agent or is it simply a waste of time?
Marlon Shevelew, specialist rental and eviction attorney at Cape-based legal firm Marlon Shevelew and Associates replies:
There are two issues here.
The first involves the breach of lease by the Tenant. As far as pursuing normal litigation through the Magistrates’ Court, this could be expensive, but it is certainly something which may have to be considered, especially if the tenant tries to hold over after the lease agreement ends in two months. In such a case, an eviction order will definitely need to be sought in the Magistrates’ Court.
The Small Claims Court provides an inexpensive alternative, but this is only as far as arrears rental is concerned. In this regard, provided the amount of arrears rental is under R12 000, a claim can be brought before the Small Claims Court, which is enforceable. The time-frame, from filing of the case to hearing is only a few months. Also, the legal expenses usually associated with litigation are avoided.
The second issue involves the estate agent. The Estate Agency Affairs Act provides that only a registered estate agent who holds a fidelity fund certificate may receive money payable under a lease agreement.
The Supreme Court of Appeal held in Ronstan Investments (Pty) Ltd and Another v Littlewood [2001] 3 All SA 127 (A) that "a director of a company that is an estate agent, certain members of close corporations that are estate agents, and certain employees of estate agents, are all required to apply for fidelity fund certificates and to contribute to the fidelity fund. For obvious reasons such persons will not keep accounting records or a trust account and are not required doing so."
The Supreme Court of Appeal went on to state that "It is a distinct and separate condition for performing the acts of an estate agent that a valid fidelity fund certificate should have been issued to the person concerned. The consequence of contravening that section is that the person concerned is not entitled to remuneration from the performance of the act, and he or she also commits an offence".
To put this differently, the estate agent in the matter has acted both unlawfully and in a manner which is such that he or she should be deprived of any commission under the lease agreement.
The appropriate course of action is to report the matter to the Estate Agency Affairs Board who can pursue criminal action.
In addition, if any commission has been paid to the estate agent, it may be recovered through a separate claim before the Small Claims Court.
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