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We bought property, tenants won't move out - help!

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We bought property, tenants won't move out - help!

06 Oct 2015

 

A Property24 reader asks: 

A reader says they bought a property where the seller and agent lied about the tenant's lease end date, and refuse to compensate them. What rights do they have?

We put in an offer to purchase in March on a property which had tenants. We were assured by the estate agent that the tenants’ lease contract ended on 30 June 2015 and they’d be out on or before that date. On 1 July, we contacted the agent who told us the tenants had refused to move out. We later found out the tenants’ lease contract in actual fact ended on 31 August and not on 30 June, as stipulated in the Agreement of Sale contract we’d signed.  

In August we were informed the matter had been taken up with the High Court and that an eviction would take place. After a second court visit by the parties involved, we found out the tenants were summoned to vacate the property by 1 December 2015. Our main concern is that we were not assured that the property would be ours at the end of this ordeal and there’s absolutely no communication between the estate agent, agency or lawyers involved. The agency told us in so many words that they ‘withdraw themselves from all of this’ and that we should look into getting a lawyer, as they will not take responsibility. 

We’ve on numerous occasions also requested the Mora Interest Clause be actioned, and that theseller (who provided false information in a binding contract) pay us a fee, as stipulated in the Agreement of Sale, for the holdup as we are now forced to look for a short-term rental. For a period of time this was either ignored or overlooked, and when we finally got hold of someone, we were then told the seller refuses to pay what we had asked to be actioned. 

What rights do we have and who can we approach for advice or to lay a claim? Neither the estate agent, agency nor the lawyers are willing to assist us in any way…

Lara Doubell, an associate attorney specialising in evictions and commercial matters at Le Roux Attorneys Inc., advises: 

The settled legal principle of “Huur gaat voor koop” means that, despite the sale and even the transfer of a property to a new owner, the tenant of the property that has been sold is entitled to continue occupying the property until his/her lease expires.  

The agent and/or seller made a misrepresentation by stating in the agreement of sale that the lease expired on 30 June 2015 when it in fact expired on 31 August 2015. The new owner will have a claim against the agent and/or the seller and if they can show that they would not have entered into the sale had it not been for the representations of the agent and/or seller, may be able to resile from the agreement. 

In respect of the eviction, it seems that the lease expired on 31 August 2015, that the tenants refused to vacate the property and became unlawful occupiers. The seller has taken responsibility for the eviction of the unlawful occupiers which is a small victory for the new owner as the legal fees incurred in respect of a High Court eviction can be exorbitant. The unlawful occupiers have been ordered to vacate the property by 1 December 2015. The new owner can be assured that, should they refuse to vacate, the Sheriff will be instructed to evict the unlawful occupiers from the property. Once the unlawful occupiers have vacated the property, the new owners may move in. 

Without taking the abovementioned misrepresentations of the agent and/or seller into account, it would appear that neither the agent nor the seller could have anticipated that the tenants would refuse to vacate the property on expiration of the lease agreement and the seller was forced to institute eviction proceedings against them (this would need to be investigated). The above does not preclude the new owner from their claim for occupational rent. 

It seems that your sale agreement makes provision for the new owner to claim occupational rent from the seller until the unlawful occupiers vacate the property. You are, of course, entitled to this and may institute action against the seller to claim occupational rent from 1 July 2015 to 30 November 2015. Should the seller refuse, you will, in all likelihood, need to approach the courts and require the assistance of an attorney in this regard.

Author: Lara Doubell an associate attorney at Le Roux Attorneys Inc.

Submitted 06 Oct 15 / Views 792