2009/05/12 11:55:26 AM debbieb01 Posts: 18	Essentially, a lady viewed property on the internet 12/12/08, and paid 45% of the deposit on 15/12/09 without seeing it (balance was due before moving in) She advised she was only going to move in 1 Feb, but paid for Jan 09 rent to secure it. I chose to do renovations during Jan 09, due to this. I sent tenant application forms on 24/12 – she never completed/returned them. I never sent the lease, not having had the application forms She physically viewed property on 9/1/09, saw her furniture would not fit, sent letter on 16th Jan cancelling it. Repairs were not compete on 9/1/09 (but were for 1 Feb, but as she had paid for Jan, she said it had to be habitable – it was only painting/cleaning being done/ french door replaced). She couldn’t find suitable accommodation in this price range elsewhere, then decided she wanted to move in for just 1 month. She wanted to move in on 31/1/09, before Feb rent was paid, I refused entry, until rent was paid (I sensed that she would not pay, as the conversation from her boyfriend indicated that). They refused to pay Feb rent before wanting to move in on 31 Jan I terminated the verbal agreement citing breakdown of trust (already had a legal letter from her) when she originally cancelled it on 16/1/09. I had costs to re-advertise, so did not originally refund her deposit. I did have a call from her attorney recommending I reimburse the deposit I had a call from her new agent recommending the same. I did eventually refund the full 45% deposit, without deduction of any costs. I put “full and final settlement” on it, and she did not return the funds. Isnt’ this acceptance? My leases are 2 months notice, when she cancelled on 16th Jan, she gave me None. She originally claimed back her January 09 rent, which I refused due to late cancellation (16/1/09), then changing it to wanting property for 1 month. She is claiming I falsely advertised (as the photos were of another unit, which was also advertised on the same property). She is now claiming her Jan-09 rent, her B&B costs, and the rent of her old place to “store her goods” total R6380, via a letter of Demand from Small Claims Court I don't live in the same town, so attendance of court is difficult. My own costs are R6517 (notice period, fixed PQ utilities, re-advertising, documentation) How do I handle this? Can I issue a counter Letter of Demand for the costs previously waived on rention of the Jan-09 rental?
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2009/05/14 02:05:38 PM Michelle Posts: 97	PART 1 Dear Michelle, 1. I refer to your email of the 12th May 2009 addressed to Allison Williams of our office. 2. I have briefly researched the relevant legislation and Common Law regarding the query in your email under reply and advise as follows:- 2.1. Section 5(1) of the Rental Housing Act provides that a lease agreement need not be in writing and this agreement can therefore be considered as a verbal lease agreement. 2.2. The Rental Housing Act has certain provisions that are deemed to be included in lease agreements in Section 5(3). These provisions are as follows:- 2.2.1 The landlord is entitled to receive a deposit from the tenant. The deposit amount can be agreed upon between the parties and it appears from the query that the parties agreed on a 45% deposit and payment of the balance upon occupation by the tenant. 2.2.2 The landlord is obliged to place such deposit in an interest bearing account for the benefit of the tenant. 2.2.3 The landlord is entitled to apply the deposit to damages suffered by the landlord due to the tenant including damages for unpaid rental. 2.3. The verbal lease agreement could be considered to have commenced on the 1st January 2009. 2.4. Since there was no notice period agreed upon between the parties, the Common Law provides for reasonable notice to be given to the landlord for cancellation of the agreement. I am not sure as to what period the parties agreed on for the initial period of lease but assume that it was on a month to month basis and therefore a reasonable notice period would be one month’s notice.
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2009/05/14 02:07:10 PM Michelle Posts: 97	PART 2 2.5. Rental, if not agreed upon between the parties, is payable in arrears. 2.6. The balance of the deposit was due to be paid by the tenant on occupation being the 1st February 2009 by agreement between the parties. 2.7. The tenant complied with the terms of the verbal lease agreement as follows:- 2.7.1 Payment of 45% of the deposit; 2.7.2 Payment of January’s rental in arrears. 2.8. The tenant did not comply with the following terms of the verbal lease agreement:- 2.8.1 Although the landlord tendered the premises for occupation by the tenant on the 1st February 2009, the tenant did not take occupation of this premises. Occupation is not a requirement for a valid and enforceable lease agreement and the lease agreement in existence was thus valid and enforceable whether or not the tenant chose to take occupation of the leased premises. Such leased premises was open and available for the tenant to take occupation but the tenant chose not to do so. 2.8.2 The tenant therefore did not take occupation which was his / her right not to do so as long as the rental was paid on the month to month basis in terms of the lease agreement. 2.8.3 The tenant then cancelled the lease agreement on the 16th January 2009 without notice. The landlord, at this point, has the choice of whether to accept such cancellation and to claim damages for unpaid rental or for any other damages by virtue of such cancellation without notice or the landlord could have chosen to claim specific performance from the tenant in that the tenant would be forced to give one month’s notice before cancellation. It appears as though the landlord accepted this cancellation and therefore was entitled to claim damages mentioned above. 2.8.4 The deposit should have been retained for claiming damages but was refunded. The landlord therefore had no deposit to use for mitigation of her damages. 2.8.5 Had the tenant given one month’s notice on the 16th January 2009, such notice would have expired on the 16th February 2009 and considering that a new tenant would only take occupation in March 2009 I would consider it fair and reasonable to have expected February’s rental from the tenant. The landlord has therefore suffered damages for the amount of February’s unpaid rental and is entitled to keep January’s rental as, on one month’s notice, the tenant would only have vacated on the 16th February 2009. 2.9. My advice is therefore that the landlord defend the Small Claims Court summons and delivers a plea including a counter claim on the grounds listed above, listing the damages the landlord has suffered by the tenant’s non-payment of rental, cancellation without notice and any other damages as mentioned in the email under reply. 2.10. The tenant is not entitled to claim her January 2009 rent as she was in fact in occupation of the premises or entitled to take occupation of the premises in January 2009. 2.11. The tenant is also not entitled to any Bed and Breakfast costs as the tenant was the one who cancelled the lease and was in fact in breach of the lease agreement. The same would apply to any storage costs which the tenant has suffered by virtue of her own cancellation of the lease agreement. 3. I trust that you will find the above in order. edited by Michelle on 5/15/2009
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2009/09/04 03:56:20 PM debbieb01 Posts: 18	The small claims court hearing was heard on 3rd September 2009. The judge is still determining "where the cause of events occured"? I was told by SCC clerks that since I placed the advert (from PE) and was in PE, when the call was received, that the case should be heard in PE court, despite the property being in Pinetown. The tenant never took occupation, and when she made the calls she still lived in Port Edward. Where should the case be heard? Obviously PE is great, 10 minutes down the road, and court dates are 4 weeks, whereas Pinetown are 5 months waiting. Any answers to court jurisdiction, should I need to contest the outcome?
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2010/05/31 06:43:20 PM debbieb01 Posts: 18	The SCC case was held, and the Commissioner ruled refunding the Jan-09 rent citing that the Landlord did renovations during this time. The Commissioner conveniently overlooked that the tenant had in fact advised the later occupation date, which allowed the Landlord the time to renovate. The tenant cancelled the verbal lease [in writing], and since the Commissioner awarded refunding the Jan-09 rental, this could not be retained as Feb-09 notice period. The tenant verbally secured a property, paid the deposit almost immediately, but viewed it only a month later, and cancelled it without moving in, and got every last cent back. Surely this is irregular? Can I claim a notice period of 1 month (or two, typically all my leases are two, but we never signed a lease)? Can I issue a Letter of Demand on TPN, if I do not have the ID no? Can I blacklist on TPN without the ID no? How can I get a tenants ID no. if it is essential for the blacklisting/LOD? Once I have issued LOD, waited 20 working days, can I blacklist? Do I have to go through the SCC to enforce payment?
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