If my landlord tells me to leave, do I have to?

Some landlords take advantage of tenants' lack of knowledge to evict them without following proper procedures and ignore the process developed to ensure fairness as prescribed by the law.

Giving a notice to vacate is a common practice by property owners to terminate lease agreements. But receiving a notice to vacate alone without a valid court order, does not mean you are evicted. More details on this and 9 other highly important rights to know as a tenant can be found in our "10 Golden Rules to Avoid Unlawful Eviction".

A notice to vacate can be a conversation, letter, email, SMS, or Whatsup message from your landlord (or their lawyer) in which they state they have cancelled your lease and that you must vacate the property by a certain date. 

Lease agreements usually provide for notice periods, prior to cancelling of the lease. The notice period given by your landlord can not be shorter than the one provided in the lease agreement. It normally ranges from 20 to 30 days. At times the lease agreement may provide for longer periods of more than 30 days.

The Consumer Protection Act (CPA), which regulates residential lease agreements states that such a notice period can not be less than 20 working days. 

In a recent Western Cape High Court case of Luanga v Perthpark Properties Ltd 2019 (3) SA 214 (WCC), it was ruled that Section 5(5) of the CPA requires that the notice period runs from the first day of the month and terminates on the last day of that month, even if the notice is given during the previous month.

Nevertheless, receiving a notice to vacate does not mean you must leave your home! The first step is to check if the notice to vacate is lawful. Insufficient notice, breach of terms of lease, sudden termination of lease, eviction notice due to conflict, untrue statements in the notice, and unfair practices by your landlord, can constitute an unlawful notice to vacate. 

If you are convinced that the notice to vacate is unfair, you should point this out to your landlord or make a complaint at the Rental Housing Tribunal.

You may need to engage your landlord if the notice to vacate is lawful. The landlord cannot evict you for no reason - merely because they want you out. There are legal regulations guiding the termination of a lease agreement.  

Not paying your rent, intentionally causing serious damage to the property, using illegal substances on the property or using the property for non-residential purposes all constitute a “material breach.”

Even though there may be evidence of a breach of the lease, you may still be given seven (7) working days written notice to rectify the breach (to fix the problem).  It is only when you remain in default of the breach after this period that the landlord may cancel your lease. 

The law does not support your eviction into homelessness. The court may ensure that, even though you are evicted, you are not thrown into the street by granting an order, after considering all relevant circumstances. This is why it is important to attend all court proceedings so that the court will hear your side of the story.

In circumstances where it is clear that your eviction would lead to homelessness, the municipality must be joined to the case in order to give an indication of its ability to provide emergency alternative accommodation.

When eviction is unavoidable, the first step would be to look for alternative accommodation. If you don’t prepare for your eviction you might find yourself and your belongings on the street. 

If the notice to vacate is lawful, you may set up a meeting with the landlord, to try to resolve the issue so that the case won’t proceed to court. If you can amicably (in a nice way) resolve the issue by, for example, paying outstanding rent or repairing damaged property, then you will be able to continue staying at the property.

If resolving the issue fails, you may negotiate a suitable timeline to move out. You may further seek legal advice from a housing assembly or other support and advice groups in your area, and await the delivery of a Notice of Motion by the sheriff.

Remember the golden rule! You may not be removed from the property without a valid court order, regardless of the fact that you have remained on the property beyond the expiry of the notice period.

*For more information visit https://evictions.org.za/eviction-chapters/receiving-a-notice-to-vacate. If you are facing imminent eviction you should seek legal advice as soon as possible.

October 2, 2020
Danmore Chuma

Danmore Chuma is an award winning frontline human rights defender, radical educationist and journalist.

Danmore Chuma
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