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Speaker 1: You're with KPE Talk.

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Speaker 2: This is papaon on lunch right. It's time for legal talk,

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Speaker 2: and today we welcome back Marlin Chevleu, director of Marlin

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Speaker 2: Chevlu and Associates, Incorporated, who specializes in all areas of property,

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Speaker 2: commercial and contractual law and litigation. But as you will

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Speaker 2: well know after all the years he's been doing this slot,

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Speaker 2: he has a real passion for residential rental property disputes

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Speaker 2: and helping to solve them. So whether you are a

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Speaker 2: landlord or a tenant or an agent, this is your

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Speaker 2: opportunity to ask away with a WhatsApp two o seven

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Speaker 2: two five six seven one five sixty seven. Great to

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Speaker 2: have you back with us, Marlin.

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Speaker 1: Aoy, It's great to be a Papa.

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Speaker 2: The first question is already in on the WhatsApp line.

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Speaker 2: I'm glad to see. But before we get to that,

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Speaker 2: I want to start with an email that came through

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Speaker 2: in advance from Vic, who wants to know we've been

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Speaker 2: talking about PIE, the legislation that governs evictions. Is PIE

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Speaker 2: relevant if your so called tenant is actually a friend

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Speaker 2: who has been staying in one of your rooms for free,

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Speaker 2: and therefore you have no written agreement with them.

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Speaker 1: Of course, as you all will know, the Rental Housing

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Speaker 1: Act doesn't prescribe that elise needs to be in writing.

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Speaker 1: The only time a lease actually needs to be in

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Speaker 1: writing if it's demanded by that tenant. And in this

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Speaker 1: particular instance, if somebody is occupying a room a dwelling,

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Speaker 1: because that would be their dwelling with your consent, then

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Speaker 1: they are a lawful occupier. Whether they are they rent

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Speaker 1: free or not is inconsequential because the bottom line is

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Speaker 1: that if they don't want to leave, you still need

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Speaker 1: to bring a PIE Act. You can't just throw somebody

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Speaker 1: out of a room. And whether their friend or not,

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Speaker 1: or tenant or not, if they're occupying then may be

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Speaker 1: paying some other way other than rental payment in kind

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Speaker 1: who knows, contributing towards electricity utilities. But the fact is

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Speaker 1: that PIE is still applicable if it is a residential dwelling,

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Speaker 1: whether there is a written agreement or not.

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Speaker 2: Okay, So if you say after two weeks, look mate,

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Speaker 2: it's been great catching up with you, but it's time

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Speaker 2: for you to move on, and they say, actually i'm

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Speaker 2: quite comfortable here, you've got to follow the same legal

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Speaker 2: steps as the unknown tenants sitting in the apartment you

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Speaker 2: rent out on the road.

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Speaker 1: Absolutely, you just got to give and sure you give

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Speaker 1: reasonable notice to that person to leave, and if they

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Speaker 1: don't leave, you can't take the launch your own hands,

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Speaker 1: as you fool well know. So yeah, it's a pier application.

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Speaker 2: Okay, Beck, I'm glad you asked the question. I'm sure

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Speaker 2: a lot of people will be perhaps surprised to hear

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Speaker 2: that answer, but glad that we could set them straight

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Speaker 2: on that. Now. The first question already in on the

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Speaker 2: WhatsApp line is from Martin, who says, I have a

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Speaker 2: tenant who has sorry, I am a tenant who had

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Speaker 2: to pay for a full year's lease in advance, and

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Speaker 2: I was promised a cruel of interest on the prepaid money.

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Speaker 2: This was separate from the rental deposit. The agent is

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Speaker 2: now disputing that I'm entitled to the interest on that

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Speaker 2: prepaid lease. The agent also charges an admin fee on

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Speaker 2: the accrued interest on my rental deposit. What are my rights?

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Speaker 1: Well, I think it's quite curious that one would pay

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Speaker 1: a four year's rental upfront instead of letting it sit

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Speaker 1: in their bank account and a crew interest for themselves.

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Speaker 1: So for me, it's illogical to pay a full year

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Speaker 1: upfront without letting the interest accrew on that. From an

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Speaker 1: am and few perspective, year ADMIN fees are usually deducted.

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Speaker 1: I don't understand why they should be deducted from the

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Speaker 1: tenants rental payment, but be that as it may, it

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Speaker 1: is a traditional thing whereby, you know, ADMIN fees can

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Speaker 1: be deducted from the rental if you think of it. Logically,

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Speaker 1: commission is ultimately taken from the rental as opposed to

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Speaker 1: being taken you know, from the landlord and then refunded.

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Speaker 1: So the short answer is, I think it's absolutely logical

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Speaker 1: to pay a full year upfront unless there is some

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Speaker 1: financial benefit, for example, a reduced rental. I mean, don't

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Speaker 1: forget the landlord has no obligation to invest that full

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Speaker 1: year rental anyway. It's his money, the deposit absolutely invested accruing.

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Speaker 1: You can't contract out of the interest accruing on a deposit,

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Speaker 1: but for the rental, that money belongs to the landlord.

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Speaker 1: And again why you would pay that full amount only

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Speaker 1: to benefit the landlord is again very curious.

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Speaker 2: As you say, I mean, I'm thinking that school fees,

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Speaker 2: you often have that option MODL and that if you

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Speaker 2: pay the whole year in advance, they'll give you a

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Speaker 2: reduced rate. And you know, so if it's something like

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Speaker 2: that where there is a benefit for the tenant in

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Speaker 2: terms of a reduced rental fee, then it makes sense.

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Speaker 2: But I mean, we were talking quite recently on our

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Speaker 2: consumer start about how so many of these strange practices

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Speaker 2: seem to be creeping into the current environment because there

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Speaker 2: is such high demand and because of the craziness that

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Speaker 2: is happening with pricing.

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Speaker 1: Well, I can tell you though that in terms of

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Speaker 1: the deposit, not to detract from the rental question, but

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Speaker 1: oftentimes because there are big companies out there, that you

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Speaker 1: pay a deposit and that is invested in a bank

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Speaker 1: account together with a co mixtuhow of all other amounts.

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Speaker 1: So even though it is invested and there is an

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Speaker 1: admin fee that is deducted by the agent, the interest

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Speaker 1: that is accrued on that deposit is higher than the

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Speaker 1: amount they would have recrued had you just put it

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Speaker 1: into a normal bank account. But for rental, it is

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Speaker 1: very curious. Rental belongs to the landlord interest accruise on

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Speaker 1: that amount. And again, as you said, from a school

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Speaker 1: few perspective, I would have certainly done some sort of

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Speaker 1: financial benefit, saying, if you pay upfront the full amount,

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Speaker 1: I get the benefit of putting it into a money

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Speaker 1: market account or thirty to day and an incredible amount

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Speaker 1: of interest. I'll give you a month free. So yeah again,

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Speaker 1: but if it isn't in writing, it might not exist

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Speaker 1: because of that usual non variation clause in lease agreements.

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Speaker 1: Put it in writing signed between the parties, then it's effective.

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Speaker 2: Okay, thank you for that. Seven two five six seven

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Speaker 2: one five sixty seven is the number to use if

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Speaker 2: you would like to pose a question to Marlon Chevalou

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Speaker 2: specifically on residential rental properties. Please, I do see one

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Speaker 2: email coming in our commercial property, and I'm afraid this

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Speaker 2: is a residential focused slot, so we'll have to set

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Speaker 2: that aside for another day with apologies. Okay. Another question

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Speaker 2: on PIE Why do banks often auction properties without first

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Speaker 2: removing unlawful occupants, thereby making the buyer have to go

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Speaker 2: through all the jumping through hoops of the PIE Act?

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Speaker 1: Is the question because banks aren't considered landlords, you know.

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Speaker 1: The banks of course, depending on where when the bond

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Speaker 1: is taken out, can sell a property with or without

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Speaker 1: with a lease or without a lease, and ultimately their

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Speaker 1: man aim is thing sure they get as much money

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Speaker 1: as possible to cover the bond. So you can find

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Speaker 1: yourself a with a property in possession. It's called a

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Speaker 1: pip by the property, an auction SHARE's auction as they

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Speaker 1: would say, and you buy with the tenant or without

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Speaker 1: the tenant. So yeah, the banks are not in the

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Speaker 1: habit of being sellers or landlords. If they foreclosed on

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Speaker 1: the property because of an unpaid mortgage. How much is outstanding,

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Speaker 1: that's the reserve price. That's what we want. It's your

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Speaker 1: baby afterwards.

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Speaker 3: And do you have to deal with the problem of

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Speaker 3: the non paying tenant is sitting there for example, Okay,

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Speaker 3: which means it's really important to do your research and

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Speaker 3: ask questions about is there a tenant in place, et

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Speaker 3: cetera before you go and bed at auction.

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Speaker 1: Not only that, you can only effectively have the authority

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Speaker 1: to effect that tenant once you take transfer. You can't

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Speaker 1: leave it to the bank to do so because you

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Speaker 1: don't have the locust standard only when you're the owner

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Speaker 1: of the property with that tenant. And just a last point,

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Speaker 1: which is so interesting. If you in a private sale,

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Speaker 1: well if there's a lease in place. We all know

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Speaker 1: your heart for a quip, which means the lease survives

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Speaker 1: a sale. In sales and execution, the lease doesn't survive

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Speaker 1: the seal. It may very well happen that the property

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Speaker 1: is sold with or without a tenant, but in a normal,

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Speaker 1: traditional private sale, the lease is always first in place

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Speaker 1: when the property is sold, and the purchaser has to

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Speaker 1: respect that lease that least.

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Speaker 2: Okay, thanks for the explanation there. Okay. Anonymous asking does

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Speaker 2: the tenant have the right to change the front door

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Speaker 2: locks without informing their landlord?

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Speaker 1: That's a lovely question that I would say yes, as

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Speaker 1: long as they ensure those duplicate keys are provided to

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Speaker 1: the landlord. Because the landoard has a right to access

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Speaker 1: with consent and unreasonable notice. Doesn't mean that the landlord

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Speaker 1: has any right to just rock up there and into

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Speaker 1: the premises. But the intent behind changing the locks is

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Speaker 1: important because ultimately it is the landlord's property and you

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Speaker 1: should have a right to access that property on notice.

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Speaker 1: Change the locks for your protection, but make sure the

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Speaker 1: landloard has a duplicate cider.

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Speaker 2: Okay, So they're entitled to a set of keys, they're

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Speaker 2: entitled to ask for one, if they become aware of

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Speaker 2: the fact that it has happened without their knowledge to

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Speaker 2: the person sending that, But the tenant does have the

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Speaker 2: right to do it. I want to emphasize again what

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Speaker 2: you said there, because I think this is one of

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Speaker 2: the questions that crops up quite often, Marlon, that people assume,

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Speaker 2: because it's my property, as the owner, I have the

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Speaker 2: right to come and visit and come in at my

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Speaker 2: own discretion whenever I feel like it. That's not the case, no,

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Speaker 2: I think.

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Speaker 1: Think of it logically, you look at the converse. If

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Speaker 1: the land or changes the lots without informing the tenant or,

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Speaker 1: that would be spoliation. That would be a tenant being

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Speaker 1: disavowed from their ability to enter the property. But as

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Speaker 1: I say, tenants had this misperception that they've stayed there

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Speaker 1: for years, that it's their property. Landolds have this misperception

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Speaker 1: that because they own the property, they can come and

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Speaker 1: go as they please. It's a delicate balance which needs

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Speaker 1: to be understood in the landlord's tenant relationship.

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Speaker 2: Okay, we are in conversation with Marlon Chevalu of Marlon

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Speaker 2: Chevlou and Associates, and if you have a question regarding

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Speaker 2: residential rental property. Whether you're asking as the tenant or

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Speaker 2: the land lord, or perhaps even as the agent, you

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Speaker 2: are welcome to sender what's up to seven two five

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Speaker 2: six seven one five six seven Keith would like to know.

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Speaker 2: Can a tenant subletter room without the owner's knowledge? And

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Speaker 2: then if they do? What would happen if the tenant

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Speaker 2: moved out and then the subletter refused to go.

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Speaker 1: Well, Invariably, in most lease agreements, and I would say

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Speaker 1: ninety nine out of one hundred would have a clause

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Speaker 1: that says no subletting, no session, no assignment, no right

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Speaker 1: to allow any other third pardy to come in without

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Speaker 1: the landlord's consent. Assuming it's silent and the tenant does sublease,

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Speaker 1: then you've got a very weird dynamic of a landlord,

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Speaker 1: a tenant, and then a subtenant. There's no nexus between

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Speaker 1: the landlord and the subtenant if the tenant leaves. What

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Speaker 1: actually happens is if a lease is terminated, the subtenant's

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Speaker 1: lease simultaneously terminates by operation of law. But if the

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Speaker 1: tenant leaves and the landlord is left with a subtenant

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Speaker 1: who had no consent to be there, it's an unlawful occupy,

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Speaker 1: you would have to terminate it, not a similar to

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Speaker 1: terminating the lease of a tenant. That subtenant only is

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Speaker 1: there by virtue of the tenants authority. If the tenant

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Speaker 1: never had the authority because he didn't have the consent

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Speaker 1: of the landlord, that personal effectively is there's a squatter,

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Speaker 1: although we don't use that word anymore. There's no squatter's

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Speaker 1: accents nineteen fifty two. But they are there without the

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Speaker 1: consent of the landlord. And that goes right back to

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Speaker 1: our first question. You need to be there with the

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Speaker 1: consent of the landlord.

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Speaker 2: Okay, So if there isn't a subletting clause in your lease,

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Speaker 2: even if it is, we put it.

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Speaker 1: Even if there's a subjeting claws and the tenant leaves,

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Speaker 1: in that instance, the tenant leaves, that subtenant has no

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Speaker 1: legal right to be there anymore. And even if you did,

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Speaker 1: you're entitled to give them notice by virtue of the

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Speaker 1: fact that there was no contract between the two of you.

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Speaker 2: O seven two five six seven one five sixty seven

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Speaker 2: the number to send your query to. Now, there was

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Speaker 2: a question that also actually came quite through. It's not

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Speaker 2: exactly subletting, but it's adding on somebody else. Let me

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Speaker 2: just find it here there it is. Thank you. By email,

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Speaker 2: Anonymous says I signed a lease on my apartment with

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Speaker 2: the new tenant, a single professional man. All went fined

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Speaker 2: for the first few months, but now his girlfriend has

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Speaker 2: moved in with him and as a result, the water

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Speaker 2: and electricity consumption has shot up. Do I have the

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Speaker 2: right to adjust the month that you rental to compensate

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Speaker 2: for this?

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Speaker 1: Well, again, it depends on what it says in the

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Speaker 1: lease agreement. But in that particular instance, what I would

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Speaker 1: do is I would pen a letter very simply saying, listen,

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Speaker 1: this is the lease agreement. It was premised on one

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Speaker 1: person that we were adedem We were of the same

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Speaker 1: mind that this is how it was going to be

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Speaker 1: for one person. The fact that you've brought in an

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Speaker 1: additional person, congratulations. But to that end, there has been

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Speaker 1: an increase, and we're entitled to do that, and I

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Speaker 1: would try and deal with it in a way of

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Speaker 1: an addendum to the lease. The fact of the matter

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Speaker 1: is that it might be difficult to try and do

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Speaker 1: without an addendum, But if you can prove that there's

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Speaker 1: been an increase in the utilities in the water, whatever

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Speaker 1: the case might be, because of an additional person that

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Speaker 1: wasn't envisaged at the beginning. And I think it's certainly

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Speaker 1: something you can claim as that potentially damages or a loss.

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Speaker 1: In that instance you are impoverished by an extra amount

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Speaker 1: that the additional person has brought in. So it could

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Speaker 1: be quite tricky, but as I say, depends on who

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Speaker 1: signed the lease agreement and rather do it in a

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Speaker 1: conciliatory way to ensure because the tennant brings somebody else in,

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Speaker 1: there should be a love to the fact that it's

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Speaker 1: going to increase consumption the utilities.

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Speaker 2: I mean, it's a fairly easy thing to substantiate and

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Speaker 2: to justify what you're asking for. Modern it's a simple

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Speaker 2: case of here's my rates bill from before they moved in,

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Speaker 2: and here's the last two months since they've been here.

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Speaker 2: This is what the discrepancy has been, and can we

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Speaker 2: please reach an agreement on how we cover that.

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Speaker 1: But it would say that in the lease agreement, tending

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Speaker 1: is liable for electricity, so there may not be no

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Speaker 1: needed or to concern yourself. Here is the electricity bill

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Speaker 1: received from the City of Captain Jatanngo is the case.

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Speaker 2: Maybe okay, right, let's see what else we have here.

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Speaker 2: Another anonymous saying the tenant moved out without paying, but

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Speaker 2: still has goods in our garage. They've stolen some fittings

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Speaker 2: on leaving now says they don't have a place for

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Speaker 2: his goods that he left behind. What can I do

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Speaker 2: if he doesn't want to fetch his stuff from our garage.

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Speaker 1: It's a very, very difficult because ultimately it comes down

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Speaker 1: to are you allowed to take stuff out remove it

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Speaker 1: to allow a third party to move in. Let's say

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Speaker 1: somebody abandons and obviously there is the law of abandonment

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Speaker 1: in South African law. My best bet, and as horrible

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Speaker 1: and ridiculous as a massund, is to write a letter

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Speaker 1: of demand to the tenant saying these are your goods,

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Speaker 1: you've left them behind. We're going to take you criminally

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Speaker 1: for what you've removed from fixers on fittings, but these items,

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Speaker 1: if you don't come collect them, we are going to

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Speaker 1: sue you. We're going to get judgment work the sheriff

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Speaker 1: of the court to come along and attach those items

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Speaker 1: and remove them. The other way to do it, and

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Speaker 1: again it's with the legal hat off is to say, listen,

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Speaker 1: we're not going to sell it. We're not going to

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Speaker 1: deprive you of money for the value of those goods.

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Speaker 1: We're going to donate it to a local charity. So

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Speaker 1: we're not going to get any financial compensation for those goods.

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Speaker 1: Here's your opportunity to come and collect it. Record those notifications.

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Speaker 1: Don't leave it out on the front stop whatever for

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Speaker 1: somebody to steal, because next thing they come along and

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Speaker 1: say it was my van goch that was stolen. So

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Speaker 1: there are many ways of dealing with it. The best

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Speaker 1: way is to get an officer of the court sheriff

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Speaker 1: to actually attach them, judicially, attach them, sell them in

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Speaker 1: execution because that's with a judgment and that can be indisputable.

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Speaker 2: What sort of costs are you in for if you.

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Speaker 1: Couple of thousand rand absolutely, which of course you can

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Speaker 1: try to seek back from these tenants who left, and

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Speaker 1: they may be able to solve all those pictures and

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Speaker 1: fittings to recuperate the money that they owe you.

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Speaker 2: Okay, good luck, Anonymous. I'm sorry that you're in that position.

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Speaker 2: I can tell you the second person asking me virtually

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Speaker 2: an identical question today, because there is another email in

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Speaker 2: from someone in the same It's almost the same position,

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Speaker 2: the difference being in this past she's already been through

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Speaker 2: the expense of going through a proper eviction and did

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Speaker 2: achieve an expensive eviction order. But she says, my problem

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Speaker 2: tenant is finally gone, but she has left behind random

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Speaker 2: kitchen items, a bedroom curtain, a bath mat, et cetera.

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Speaker 2: And her question is can I throw these away or

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Speaker 2: sell them to deframe my vast expenses.

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Speaker 1: In that particular instance, I would say probably can. As

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Speaker 1: long as you record it. You must always give the

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Speaker 1: fleeing tenant an opportunity to come along and reclaim it.

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Speaker 1: If they choose not to, then in that instance, as

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Speaker 1: a last resort, you can do so.

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Speaker 2: Okay. So in her case, she already has the weight

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Speaker 2: of a proper court order direction order behind. It does

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Speaker 2: make for a slightly different, okare situation. Right, Let's have

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Speaker 2: a look at what else we have got here. I

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Speaker 2: don't know that we're going to have time to dive

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Speaker 2: into that venitia. Apologies for just that message came in

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Speaker 2: just too late for me to have time to deal

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Speaker 2: with it properly. So what we're going to do is

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Speaker 2: set it aside for the next time Marlin is with us,

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Speaker 2: which will be in six weeks time, I think from

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Speaker 2: today and be able to give it a good deep dive.

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Speaker 2: So follow up question on what you said about getting

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Speaker 2: a sheriff's application to attach those goods that were left behind.

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Speaker 2: The question is how do you actually set that ball rolling?

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Speaker 2: How do you insticate such an action.

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Speaker 1: A summons It's called a rent interdict.

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Speaker 2: Summons rent interdicted summons, and you.

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Speaker 1: Basically have the summons issued, get it served by the sheriff,

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Speaker 1: and you can have it endorsed so that the sheriff

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Speaker 1: can actually remove the items from the place where the property,

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Speaker 1: or at least the moveable property is situated. You can

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Speaker 1: also do a special Section thirty two application, which is

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Speaker 1: a lot more expensive to attach and remove, but there's

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Speaker 1: certain procedures that need to be followed. The most important

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Speaker 1: thing is that if you're going to sell those items

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Speaker 1: or get them out of the garage and have no

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Speaker 1: potential comeback in order to allow a new party to

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Speaker 1: move in, rather have the sheriff appointed by a court

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Speaker 1: order to do the necessary It comes at a cost,

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Speaker 1: but you'll sleep at night as opposed to getting rid

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Speaker 1: of them and sending being met with this legal letter saying, yes,

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Speaker 1: our client had left, but they didn't abandon their items.

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Speaker 1: What gave the idea that they did do? So they've

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Speaker 1: suffered a loss and are we suing you for that.

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Speaker 2: Week of our losses?

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Speaker 1: Absolutely?

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Speaker 2: Is there a sort of a legal time frame on

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Speaker 2: which something is considered abandoned? Man, at what point would

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Speaker 2: they legally be viewed as a bandit?

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Speaker 1: I would say probably three four months or so. You know,

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Speaker 1: they might have gone overseas for a holiday with money

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Speaker 1: that they had for not paying their rental. But the

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Speaker 1: fact is of Belts embraces couple of months just in case,

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Speaker 1: and you can always quantify your loss saying I've been

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Speaker 1: unable to procure a new tenant because there's no storage

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Speaker 1: space for their items. This is my calculable loss and

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Speaker 1: I'm going to sue you for it if I have to.

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Speaker 2: Go that route, or I've had to move your items

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Speaker 2: into a storage unit. And here, as well as rental.

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Speaker 1: The land has always paid that cost. Even if it's

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Speaker 1: judicially attached by a sheriff and you want to be sold,

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Speaker 1: the landward always picks up the cost of the storage.

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Speaker 2: Yeah, So keep good records is the other thing to

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Speaker 2: take away from today. Marlon as always incredibly helpful. Thank

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Speaker 2: you so much for being with us. And what shall

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Speaker 2: I get it in six weeks time?

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Speaker 1: Can't wait.

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Speaker 2: Thanks Papa Marlon Chevalu of Marlon Chevalu and Associates