WHEN DOES THE ONE MONTH NOTICE FOR TERMINATION OF A RESIDENTIAL LEASE AGREEMENT START?

Recently the Western Cape High Court delivered judgement in the Noella Kabunda Luanga v Perthpark Properties Ltd case specifically relating to section 5(5) of the Rental Housing Act 50/1999.  The section states that if a lease expires and a tenant remains in the property, the parties are deemed to have entered into a periodic lease on the same terms and conditions as the expired lease except that at least one month’s written notice must be given of the intention to terminate the lease.

The question before the Court was whether the notice period must be understood to expire on the last day of the month.

In the Perthpark case the tenant remained in occupation of the premises after the lease agreement had expired, even though the landlord informed the tenant on the 4^th of May 2017 that the lease agreement would not be renewed, and the premises had to be vacated by 5 June 2017.  The lease therefore continued on a month-to-month basis according to the Rental Housing Act.  The landlord accordingly sought an eviction order in the Magistrates Court which was granted in December 2017.

The eviction order was challenged by the tenant on appeal in the High Court as it was alleged by the tenant that the notice only expired at the end of a month and thus the termination in this event was not lawful. If the notice of termination of the lease was invalid, it would pose as a defence for the tenant.

The judge found that the Act must be interpreted with the common law which in itself will highlight our constitutional values as it would be much easier for a tenant to vacate premises at the end of the month and to find alternative accommodation at the start of a month.

The notice period must therefore be interpreted to run from the 1^st day of a month, and to terminate on the last day of the said month.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)