In a recent case before the High Court (Mafikeng), the question arose whether a lessee could be evicted solely on the basis of a lease agreement, without following the provisions stipulated in the Prevention of Illegal Eviction From Unlawful Occupation Of Land Act (the “Act”).
In short, a lessee leased a property in order to conduct commercial activities therefrom. The lease agreement was also drafted in such a manner that the property was solely to be let for commercial activities. The lessee however (without the knowledge of the lessor) also used a portion of the property for residential purposes.
The Judge ruled that:
- The Act concerns itself with the actual circumstances and not the terms and conditions of the lease agreement;
- The Act’s provisions shall only apply to that portion of the property that is used for residential purposes, but not to that portion of the property that is used for commercial purposes; and
- For purposes of eviction:
- 3.1 one would not have to comply with the provisions of the Act, for as far as the portion used for commercial purposes is concerned, however
- 3.2 one would have to comply with the provisions of the Act, for as far as the portion used for residential purposes is concerned.
This obviously poses significant risk for persons renting out properties for commercial use. Although the provisions of legislation and Court judgements can rarely be side-stepped, one should consider including certain terms and conditions (aimed at preventing and/or limiting one’s exposure to damages, cost and expenses) in one’s lease agreements.