Many new property owners are faced with the nightmare of purchasing a home and the existing tenant refusing to move out. It sadly appears to take place often with friends and family telling stories of tenants who just won’t budge, lengthy delays and numerous court appearances. These are some of the options available to you, should you find yourself in this position.
Before the sale
As the buyer, it is important you make an agreement with the seller prior to the sale that they be liable for the cost of an eviction if the tenant refuses to move. Another condition which you, as the buyer, can include is that should the tenants not be out of the house on transfer, you’ll be entitled to occupational rent from the seller until the tenants vacate. If the seller and tenant do not have a written lease in place, you must insist this be done before the sale.
What the law says
According to South African law, a landlord is able to sell a property to a new owner while it is being rented out and a lease agreement is in place. There is a legal principle which states the lease precedes the sale. The tenant is therefore entitled to remain in the house for the remaining lease period. Therefore, after the transfer has taken place the tenants may still occupy the property. For example, if the purchase of the property is concluded at the end of January but the tenant’s’ lease agreement states they may live there until the end of March, the new owner may have to wait those three months.
What can be done
If you’ve taken transfer of the property, while the lease agreement is still in place, you become the owner of the tenancy. If the tenant won’t leave the property after the lease expires or is cancelled, you may begin legal proceedings. It is important you see a lawyer for legal advice and representation. According to the Constitution, no one may be evicted without an eviction order of the court. The court will have to consider all of the relevant circumstances of the case. The seller now has no authority and you, as the buyer, will have to begin the process of evicting the tenant at your own expense.
It can be tempting in these circumstances to change the locks or make the tenant’s life uncomfortable, but you will need to follow the correct legal channels to evict the tenant in the proper way.