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WCLawyer, Attorney
Category: South Africa Law
Satisfied Customers: 15603
Experience:  L.LB (UOVS)
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I have a tenant in a residential property who is in arrears.

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I have a tenant in a residential property who is in arrears. Can I issue summons for the arrears immediately or do I have to give 20 days notice in terms of CPA?
If I want to cancel and evict , do I have to give notice under CPA and what damages can I now claim for the unexpired portion of the lease if I cannot secure another tenant immediately?
Thank you in anticipation.
Jack Hajibey
Good day.

When did you enter into this lease agreement, or when was its latest renewal period?
Customer: replied 3 years ago.

The lease was entered into in April . Commencement date 1 May 2013 and termination 30 April 2014. Tenant gave 20 days notice in terms of CPA but has not paid rental for July or made any offer of compensation for the unexpired portion of the lease.

So, the tenant canceled the lease?
Customer: replied 3 years ago.

The tenant has given 20 days notice in terms of the Consumer Protection Act to cancel the lease.

1. The Act has not been with us long enough to have the benefit of case law. So, all of this is my own opinions and interpretations of the Act.

2. Section 14 of the Act deals with early termination of the lease agreement. Section 14(2)(b)(ii) says that you need to give 20 business days notification if the consumer is in breach and if he remains in breach for those 20 days, you can cancel on the 21st business day. It does not, however, seem to apply to where you want to summons for specific performance in terms of the contract (in other words, to claim for arrears). You would therefore not have to wait 20 days and can sue, unless your contract require a notice period. If it does, you need to adhere to that. Since the tenant has already canceled, whether you want to or can cancel, does not matter at this stage. The contract will be deemed canceled, on insistince of the consumer, on the 21st business day.

3. Section 14 does state that you can claim damage for early termination. It does not say how much you can claim, but does refer us to the regulations for the guidelines. Those guidelines reads as follows:

5(2) For purposes of section 14 (3), a reasonable credit or charge as contemplated in
section 14 (4) (c) may not exceed a reasonable amount, taking into account—
(a) the amount which the consumer is still liable for to the supplier up to the date of cancellation;
(b) the value of the transaction up to cancellation;
(c) the value of the goods which will remain in the possession of the consumer after cancellation;
(d) the value of the goods that are returned to the supplier;
(e) the duration of the consumer agreement as initially agreed;
( f ) losses suffered or benefits accrued by consumer as a result of the consumer entering into the consumer agreement;
(g) the nature of the goods or services that were reserved or booked;
(h) the length of notice of cancellation provided by the consumer;
(i) the reasonable potential for the service provider, acting diligently, to find an alternative consumer between the time of receiving the cancellation notice and the time of the cancelled reservation; and
( j) the general practice of the relevant industry.

My advice to you is to estimate how long it is going to take for you to find another tenant. Then, add the amount of months to your summons for the arrears as your amount of damages for early termination.

I hope this answers your question, but if you have any further questions, feel free to ask them before you rate. It will not cost you anything extra. If you are satisfied with the answer, kindly click on one of the five faces on the ratings page. I don't get anything for this answer unless you do.

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