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When is a tenant not a tenant?

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In terms of the Constitution of South Africa, “No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.” The Prevention of Illegal Eviction (PIE) Act (1998) sets out the procedure to be followed if eviction becomes necessary.

However, there are times when PIE does not apply. As a landlord, how can you be sure that you act in full accordance with the law at all times?

Tenant vs. guest

Recent case law draws a distinction between the residential status of ‘guest’ and ‘tenant’, stating that hotel guests and occupants of holiday accommodation are not true tenants and thus are not protected by PIE. This decision rests on the definition of ‘home’ and asserts that if the occupant has a habitual dwelling elsewhere, then the holiday cottage or hotel lodging does not constitute one’s home and the owner has the right to evict guests if they should overstay or otherwise breach the existing contractual agreement.

Tenant vs. lodger

But what about the lodger in one’s home? If you rent your spare room to a student whose occupancy becomes disruptive and intolerable, what are your rights as the landlord vs. theirs as tenant? According to an American case: “The chief distinction between a lodger and a tenant lies in the character of possession. A ‘lodger’ has only the right to use the premises, subject to the landlord’s retention of control and right of access. A ‘tenant’ has exclusive legal possession of premises and is responsible for their care and condition.”

In another similar case from the US, “The chief distinction between a tenant and a lodger or roomer lies in the character of their possession. The criterion is the right of exclusive possession. While the tenant has exclusive legal possession of the premises, the lodger only has the right to use the premises, subject to the landlord’s retention of control and right of access to them.”

These findings would suggest that the lodger in your spare room is not considered a tenant and you are within your rights to end the agreement should it become untenable for you. However, common decency dictates that you give reasonable notice and not leave the lodger homeless.

Get it in writing!

Unlike holiday accommodation and hotels, where formal check-in procedures are the norm, private landlords renting a spare room rarely put things in writing. There may be some initial discussion about ‘house rules’, but lodging arrangements tend to be informal and unofficial, which can be problematic if the circumstances turn unpleasant.

We recommend that, however short the duration and casual the situation, both parties sign an agreement at the outset determining the boundaries and expectations. Whether it is loud music at night or number of visitors, if you are clear about the terms and conditions, you and your lodger are less likely to fall out. And if you really just don’t get on, the agreement should stipulate how much notice you each have to give to quit. 

If the worst should happen…

We can help you draw up a simple lease agreement to use with lodgers in your home, to protect your rights and ensure you treat lodgers fairly. If, despite having taken reasonable precautions, you find yourself with a sitting tenant who won’t vacate your premises after a reasonable notice period, speak to Simon today on 076 116 0623 or email sdippenaar@sdlaw.co.za

We will help you reach a satisfactory and dignified conclusion that is fair to all parties.

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