If your tenants have improved your property, can you evict them?
If you find yourself in the position where your tenants have undertaken property repairs and improvements, yet you still need to evict them, you are advised to tread very carefully.
Are you obliged to compensate tenants for improvements to your property?
There are many variables to consider, from the motivation for your eviction to the extent of their capital outlay and whether it’s rural or urban real estate. These factors will determine whether or not you can legally serve them notice of eviction from your property without compensation for their expenses.
In South Africa, landlord and tenant rights are comprehensive and taken very seriously. Knowing where you stand is important for successfully navigating any potential disputes. For example, as a landlord, you would be responsible for the upkeep of the property. The tenant may not be charged for reasonable wear and tear, or ‘deterioration or depreciation in the value of the subject matter by ordinary and reasonable use’.
What is an enrichment lien?
Our laws are generally very clear about the rights of tenants during eviction and the property owner rights when evicting. However, it can get very technical when dealing with the issue of an ‘enrichment lien’. This allows a tenant to remain in possession of the property when the lease is terminated, until the landlord has compensated them for the costs of necessary and useful improvements they’ve made with their own money.
It’s important to note that this enrichment lien applies only to expenses tenants incur when protecting or preserving the landlord’s property, and for useful improvements.
Infringing on eviction rights for tenants could cost you in time, money and emotional wellbeing.
Ensure that every step is by the book when you move to evict, by having a trusted lawyer in your corner. Here are some examples of where case law has landed firmly on the tenant’s side:
- Brooklyn House Furnishers Ltd v Knoetse & Sons 1970 (3) SA 264 (A) 270. This lien has been described as the ‘right that a possessor of another’s property – on which he has expended money or labour – to keep the property in his possession until he has been compensated for his actual expenditure or labour.’
- Supreme Court of Appeal in Business Aviation Corporation (Pty) Ltd and Another v Rand Airport Holdings (Pty) Ltd  SCA 72 (RSA). In this case – an action by a lessor for the eviction of the lessees from an urban property – the lessees relied on an enrichment lien as they had expended money on necessary and useful improvements to the property. For which they had not been compensated. The court agreed with this contention, holding that the right of retention would endure until the occupier had been compensated for such improvements.
What about the landlord’s rights when evicting?
This is when the best defence is a good offence.
Pro tip from the experts
As a landlord you can actively protect yourself against the ambiguity of statements like ‘what is considered necessary and useful improvements’.
How do you save yourself forking out even more down the line?
It’s easy. Before signing on a tenant, speak to our lawyers about how to insert governing clauses into the lease, which will restrict them from holding over for compensation unfairly. An example of such a clause is: ‘The tenant shall not make any structural or other alterations, additions to or improvements in the dwelling without prior written consent of the landlord or landlady.’
Contact us today for support and advice regarding tenant property repairs and eviction rights. We help our clients keep what’s rightfully theirs.