Eviction: When a landlord may cancel a lease

Eviction law is for the protection of all parties' interests, explains attorney Simon Dippenaar.

"Just as no one wants to see a family unnecessarily or unfairly made homeless, landlords also have the right to receive a fair rent, on schedule, for the use of their property, and to expect their property to be properly maintained and well looked after," says Dippenaar.

Dippenaar explained when a landlord has the right to cancel a lease.

Breach of lease

If a tenant fails to pay rent, and there is reason to suspect that the tenant may not pay future rent, the landlord may cancel the lease.

However, it is not as simple as that, cautions Dippenaar.

Whether or not the court grants the cancellation depends on the wording of the lease. For cancellation to be justified, the failure to pay must represent a major breach of the lease.

For that to be upheld, the lease must contain a forfeiture clause - that is an indication that prompt payment is of major importance. The wording might include "time is of the essence of the contract", for instance.

If the lease contains a forfeiture clause, the landlord is permitted to cancel the lease on the first occasion when the tenant fails to pay rent.

However, if the landlord regularly accepts late payment, he or she cannot then use this as a reason for cancellation, because they have given their tacit approval in the past.

In this case the landlord must give the tenant prior notification if he intends to cancel the lease.

Consumer Protection Act

Bear in mind that the Consumer Protection Act (CPA) requires "residential landlords" to give tenants 20 business days' notice of the need to vacate a property.

According to the CPA, if a tenant is in material breach of the lease, a landlord can't cancel the lease without giving 20 business days' notice and can't cancel the lease if the breach is rectified within those 20 days.

The Rental Housing Act does not contain such a prescriptive clause, but the CPA takes precedence over other legislation.

Month-to-month or open-ended leases

The landlord must give the tenant "reasonable" notice of termination of the lease. A calendar month notice would satisfy the 20 business days required by the CPA and would be considered reasonable.

Public housing

Different rules apply when the lease is for public housing. Recent case law established that to terminate a public housing lease agreement on just one month's notice would be oppressive and unconstitutional.

Therefore, a tenant of public housing should be afforded the chance to rectify a breach prior to lease cancellation.

Implied leases

If a lease expires and the tenant continues to pay rent, and the landlord continues to accept it, they have effectively created a new, implied lease.

There are also certain fixed-term leases that become implied month-to-month leases after expiry, in terms of the CPA. By law, the payment and acceptance of rent after the official end of the lease implies that a new lease has been agreed.

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