 Welcome to your Property Rights Podcast proudly brought to you by Private Property. If you're looking for expert legal answers to all your property related questions then stay tuned. A warm welcome it is your Property Rights Podcast proudly brought to you by Private Property. Greetings from Paul Rotherham joining me in studio for today's topic once again is the lovely Silna Stain. Silna as you know by now if you've been enjoying our shows is an expert property lawyer, a specific focus on rentals and evictions that is her field of expertise and she is the MD of SSLR Incorporated Attorneys. Silna, greetings. Hey Paul, it's so nice. I'm so happy that you keep inviting me back. I do because you are an expert and I love how we have these chats without necessarily planning it like a Q&A. The questions come from our listeners and from people who've interacted with us on the Private Property site. I'm really enjoying this. So am I. Thank you. It's such a lovely conversation. And it's nice having someone here who's not only a legal expert but somebody who's had experience with some of these things as well. You and I were talking before the show today about today's subject which we have titled Sleep Overs. The person writes as follows. Hi guys, my tenant rents a studio apartment on my property. So this is the landlord who's written here. Where the maximum occupancy is one person. However, her boyfriend sleeps over inverted commas almost every night. And so the question I have as landlord is at what point does a guest become a tenant? I would normally charge more if it was a couple staying on my property. So can I increase the monthly rental effective immediately to cover the additional utility usage as well as wear and tear on my apartment? Thank you so much. Such an interesting question. And such a luckily, relatively simple answer but the wills that you saw turning away was I jumped immediately to the definitions under occupant in terms of the prevention of illegal evictions act. Now excuse me for jumping to eviction on a question like this. But the reason why my brain would do that is if a tenant is in breach of his lease agreement. So he's not complying with some of the terms of the lease agreement. The obvious thing that the landlord will have to do is place the tenant on terms. So in terms of section 14 of the Consumer Protection Act, give him 20 clear business days to remedy his breach. Less lawyer version of that is fix whatever he's been doing wrong. And you've got 20 days legally you've got 20 days. 20 business days to fix either bed, pay your area rental, get your extra occupant out or get a place cleaned up as you should. Something like that. In a case like this. The reason why I immediately jumped is that is I'm trying to think would this constant sleepover be breach of contract. And I do appreciate that that wasn't the question. But the reason why that would be my answer is that would be my starting point. When to the listeners question when is somebody no longer a visitor and when is somebody now an occupant? A tenant essentially if you're there every night with your toothbrush and your change of clothes and a pile of washing in the laundry basket. Yeah, exactly. Well, the thing is tenant luckily is easy enough because the tenant or the leaseee is the party is a party to the lease agreement. So it's their name on the contract. It's their name on the contract. They are responsible to fulfill all the obligations and they are entitled to the rights they derive from this particular lease agreement. And the reason why that's a good point to start answering this question is this tenant the single occupant well clearly not a single tenant but I mean the single tenant is the only tenant in the agreement. The parties contracted around this particular property with a limited number of occupants and you do not have to add somebody to a lease agreement to give them a right of occupation. The right of occupation may be derived through and under another party. For instance, you have a family, a mum, a dad and two kids and the lease agreements only in the mum's name. But the family lived there and even in a situation where the mum tragically passed away or something like that it would not stop the lease agreement. And that's obviously a conversation for another day. But your right of occupation doesn't have to be limited to your tenant. Other people may derive that right through and under the tenant. But this listener's question related to occupant. Now an occupant is somebody who is living in the property. So the definition of occupant under the Prevention of Illegal Evictions Act is a person who used this property as permanent or temporary shelter. Now clearly the boyfriend is using the place as permanent or temporary shelter. How long is temporary? Is there a time span for that? Unfortunately not and there is this massive confusion when it comes to evictions on when is it trespassing and when is it eviction. The truth is you can sort of see that. If somebody only has their handbag and their jacket in a place, they're not residing there. They're not living there. That would be considered temporary. That would be temporary shelter. When a case like this, if the guy has his jacket in a cupboard and he has a toothbrush at a place, he might still not be seen as an occupant because he will have another address. And this is very relevant because this person, the boyfriend now, lives somewhere else. He has a place. He might not like it as much as he likes his girlfriend, but he does have a place to stay. So legally he will be seen as a visitor even though he stays over, even if it's every night. He is still just a visitor. Wow. That's a surprise to me and I'm so glad that we have you Silna as our legal expert on your property rights podcast I wouldn't have thought that would have been the happy ending here. In the agreement though, could you specify and is this the point that now you're heading to where as the landlord, if you specify that this studio apartment as we're speaking of with specific relevance to the person who's messaged us here, if you specified it is a studio apartment that sleeps one, that changes things completely, I'm guessing. 100% and that's exactly so that the name of this person and by name I mean visitor, tenant, occupant, temporary resider is irrelevant because actually this listener said there is a term in the lease agreement that says only one occupant allowed and the boyfriend being there every evening is turning into an occupant. So becoming two occupants and the last time I checked two is more than one. The last time I checked as well. Look at us being smooth on mathematics. So it's that literal term that is the make or break in this question. Exactly. It's just the term. If the lease agreement was silent on the number of occupants allowed and listen carefully I'm saying occupants not tenants. Number of occupants limited to one means if somebody keeps on staying over, now you're an occupant. And the only thing that the landlord can do is to say, Ms. Tenant, yes this story, you are in breach of your lease agreement. I wouldn't start this necessarily with, again, not lawyer's letters, maybe just a conversation. This property, we've agreed to only one person. My utilities and maintenance expenses go up when there is another occupant. I am willing to conclude a new agreement or change the terms of the agreement if you are keen. Yes. In a situation like this I would anyway take the opportunity to advise to always keep your utilities separate from your rent. Believe separately, invoice it as the municipality invoice you. So then it's much of the muchness if the tenant is using more utilities they're just paying more. And in fairness, maintenance on a studio apartment with an extra occupant isn't going to be much more. So that would, for anybody listening now, entering into agreements like this, that would be my takeaway from this, remove your utilities from your rent, contract with that separately as you get invoiced by the municipality, you pass that invoice on to the tenant on the rental invoice and definitely have a limit on the number of occupants because in this case the landlord, if this conversation doesn't go well and the tenant says, you know what, I'll do what I want and if it costs more luckily to you problem, then the landlord has a beautiful right to place the tenant on terms, do a letter of demand. This would be in terms of again section 14 of the Consumer Protection Act as well as in terms of the bridge laws of the lease agreement. So if this lease agreement is governed by section 14 of the CPA, give the tenant 20 business days to remedy a bridge and if she doesn't, now you can cancel the agreement. On that cancellation you can still approach the tenant again for new lease agreement, but I must say by then I think relationships went really up. That's something I think and I'm really enjoying doing these episodes with private property. That's something in future that I'd like to flesh out a little more is what is it exactly that you are referring to that needs to be done within the 20 business day period because for me, I have a property in the Cape that we rent out. It's a little apartment and as a landlord, if my tenant is doing something that is blatantly disregarding the property or not looking after it and worsening the condition, I don't as a landlord want to have to wait 20 business days. I want you to fix what you're doing now. And so I think as we continue to bring you these exciting episodes with private property, for your property rights podcast, I'd love to flesh that out a little bit more soon. So I think that's something for us to keep in mind for the future. And also just to mention when it comes to sectional title living and rentals, I've seen in the agreement that we have with our tenant, the agreement is with Mr. X, but the body corporate rules within where we have our apartment state very clearly that there is a maximum occupancy of four people in a two bedroom unit. And so that's something else for you to be mindful of is in this case, we were asking the question where it's a studio apartment on the person's property. It's a very different conversation to what you might be having with somebody who is in, you refer to the sectional title or common property, I think is another term that is used. Yes, a complex sectional title complex. Okay. So these are things that we're going to flesh out. And that's why I love getting the questions from you. So please keep the questions coming. And of course you can take that conversation online. You can comment in our comment section. And if there is anything that we pick up from your comments, then I'm sure Silna and I will discuss it in a future episode of your property rights podcast. But in answer to the question, I think short and sweet is you've made it very clear as the landlord that the agreement states maximum occupancy is one person. And right now tenant is in breach of that. Yes. Yes, the tenant definitely is. A sleepover here or there as a visitor, 100% tenant is not in breach. But every evening or even let's say even four nights a week, there isn't a number in law where you switch from visitor to occupant. Would it be defined as what's reasonable? What a reasonable person would think. So hey, you come and spend a Friday night or maybe a Saturday night now and then, not every Friday and Saturday. Exactly that. And it's about in this specific context, in this particular situation, what is logical and luckily common sense prevails a bit more often than anything else when it comes to law. Well, if you want common sense, listen to your property rights podcast proudly brought to you by Private Property. Silne Stain, MD of SSLR Incorporated Attorneys as an expert when it comes to property law. Thank you for joining us for another awesome episode. Thank you. It was a pleasure as always. Your Property Rights podcast is proudly brought to you by Private Property. Leave a comment or ask a question to join the conversation.