 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. It's wonderful having you here. A very warm welcome. This is your Property Rights podcast. I'm Paul Rotherham and this show proudly brought to you by Private Property. I cannot believe we are already into Episode 4. Silna joins me once again in studio. Silna Stain, the MD of SSLR Incorporated Attorneys. Silna is not only a lovely lady but also an expert when it comes to property law. How are you today Silna? I'm so good. Thanks Paul. How are you doing? I'm doing fabulously well. I'm ready to hear your answer and it's amazing how something that seems so simple very often has a complicated and complex answer and then vice versa. I have a feeling that today which is really quite a complicated question. I have a feeling there's going to be a very simple answer to this. So we're going to jump straight in and also just say thank you so much to you for interacting with us across our Private Property Portals, on our socials, our website and all of the other good places where you are enjoying the Private Property podcast. It's quite a mouthful that. Don't try and say that in a hurry. But it's thanks to you that we're able to put this show together and this is a question that came in very recently in fact. We've titled today's episode Moving Delays. Here's the question. Tenant A. This has been written by the landlord. Tenant A has given notice as per the agreement to vacate the property at the end of the term, which is perfectly normal. Tenant B, who's obviously replacing Tenant A, has entered into the lease agreement to take occupation on the date that the tenant is moving out and this I think is quite normal for landlords. You don't want a gap in between somebody moving in and out. The movers have been booked. Everybody is happy. Unfortunately, seven days before Tenant A was due to move out they've been diagnosed with COVID-19 and have been hospitalised. Sorry to hear that. There's nobody to assist with the move at the end of the month. Tenant B has no option but to move in because these plans have already been made. Tenant A is still in hospital. We're now getting into a really messy situation because Tenant B runs the risk of losing the deposit that's being paid to the removal company and now is faced with having to find funds to pay for storage and other accommodation and alternative arrangements. As you can see, this is really getting messy. We don't know how long Tenant A is going to be in hospital so this is starting to cause problems now. How on earth does one determine who is liable for all the additional costs that are going to be incurred here? Tenant A obviously didn't know they were going to get COVID. Nobody knows that. They had planned to leave the property on the date and time that was stated so that was all in writing and would have been honoured. Tenant B on the other hand is now losing money, has nowhere to live not because of any malicious intent but it's just how things are playing out. As I say, it is a bit of a long one but I thought with COVID doing the rounds at the moment this must be something that has happened before so thank you so much for such a wonderful question for today's Your Property Rights podcast. Silna, let's get into this. Where do we start? Well, luckily for me it makes me answering this question much easier but unfortunately for the time that we're living in for the past two years, I'm saying two years now I'm there where I realise we've been living in the COVID situation for slightly less than two but in my head it's been quite some time. So since the start of COVID in South Africa I have seen this question so many times and it causes so much heartache and pain and financial stress and the answer is actually, as you rightly said in the beginning of the show a very simple answer. When we went into initial full lockdown the terms vismayor, causa fortuitous all those terms that goes to impossibility of performance in terms of a contract suddenly came up and as an attorney obviously studied law at a time where COVID wasn't even a thing we probably wouldn't have used these terms as often as we do now luckily by now I think every attorney in the world is very well versed when it comes to this. This is where this answer is going to centre around. Those answers just again for those of us who didn't take Latin thankfully I did. It got as far as a mo, a mass, a mat, a marmos, a martis, a month which I won't bore you with but those terms that you've mentioned in layman's terms that is when something happens outside of your control in a contract is that what you're saying? Exactly, your Latin translations are perfect. Oh wonderful, even though I got an H when I was at school I really did. Okay so that is COVID plugged straight into that and that is a standard part of any contract is it any agreement that we have? Yes and even if it is not written into a contract very often the logical application of that would find a place but in the majority of residential lease agreements there will be a clause that says should the tenant not be able to take occupation on the planned occupation date? For some or the other reason outside of the landlord's control then in such case the tenant won't be able to take occupation but can't claim anything from the landlord and until such a time we can take occupation must set calmly lease agreement won't terminate automatically but can be cancelled by mutual agreement without penalty to either party. Now most lease agreements have this the lease agreement, the widest use lease agreement in South Africa is the TPN lease back lease now luckily I am one of the drafting attorneys of that lease so I know him pretty much as well as I know the back of my hand and that lease agreement specifically deals with a situation like that not by term, not and I definitely discourage any landlord to ever write something as specific as what happens if my tenant has COVID into your lease agreement the law is too wide and if you limit it to COVID-19 what happens if the same thing comes up but the person has a stroke two days before he has to move so we leave the door open so I do appreciate that COVID-19 right now is the more obvious or more likely thing that somebody might have and for the same reason might have to isolate in the property or something similar but things happen and even though moving days today out coming tenant is ready incoming tenant is ready and something comes up they can't move in a situation like that weed was definitely outside of the control of all the parties unfortunately nobody will have it lame against anybody else Does that mean then Silner that tenant A who is still living on the property and whose lease has expired does that mean that they still have rights to leave their bags, their bedding, their possessions during the time that they are incapacitated those need to remain where they are untouched the landlord can't pack them up and stick them in a back room or a garden shed or force the remover to come and take them out and tenant B who is waiting in the wings ready to come in unfortunately just has to be patient am I understanding that correct? you are understanding it 100% correct and you are understanding it from the view of section 26 of the constitution now if we start pulling in the constitution it means this is the the umbrella legislation and the highest ranking law in our country is the constitution section 26 of the constitution says that no person may be evicted or have the property demolished without a court ordering to do so after the relevant circumstances has been taken into consideration what this means is if somebody doesn't give the right of occupation back freely and willingly lease comes to an attendant moves out, takes all his stuff out gives the keys to the landlord if that doesn't happen the only way in South Africa regardless of the surrounding circumstances of getting a person then out of the property would be to approach a court and obtain an eviction order now in a context like this the person is in hospital or even isolating at home I don't think anybody with a reasonable mind is going to force them to be evicted that's kind of logical exactly and if you approach a court with an eviction on a person like that the court is simply going to say wait, wait, wait I'm taking the relevant circumstances into consideration that the constitution requires of me and I'm not granting an eviction of order plus you won't be in court with an eviction that quick but I'm not granting this order because this person didn't say they're not going to vacate they can't vacate now and at the same token the tenant B that must come in unfortunately yes, there's a financial loss on that person they have no way to go they're probably going to have to stay in an Airbnb for a week or so unfortunately they are going to have to absorb those costs themselves because the landlord's not responsible for this exiting tenant isn't responsible for this the only time where there would be a claim here is if tenant A doesn't have COVID or a good reason they just not moving or they didn't take the time to make the necessary arrangements to move in a case like that tenant B has a claim against the landlord because remember he doesn't have a relationship with tenant A but the landlord then has a damages claim directly against tenant A who is the direct reason for these damages being suffered I really think it's a relevant question particularly now with COVID-19 we are hoping that it's going to be falling off the radar but for now it's still very much with us we do still have a few minutes in this episode and I'd just like to touch on something and it might involve a whole new episode in which case please let me know if it does but you mentioned at the beginning that it is specifically when something is out of your control so you've had a stroke or a heart attack God forbid or you have gone into hospital with COVID to what extent do we determine something to be out of our control let's say for instance I lose my job sorry landlord I've lost my job I can't pay your rent but I can't afford to leave because I can't afford to live anywhere else is that a topic for another day or does that plug into this sort of conversation just briefly no he plugs in perfectly for example I think a separate topic we won't cover enough but it's a very good question so we go back to the reasonable person test if it's impossible for a reasonable person not to move in a situation like this then we say this is out of your control objectively it's out of your control unfortunately financial difficulties doesn't make something impossible there's the answer right there that's why I said it won't take a whole episode to say that one little statement because I was just picturing this person who's in your dark room playing computer games all day couldn't be bothered to work and at the end of the month oh sorry I don't have the money to pay you and I can't move out because I can't live anywhere else well sorry for you but you're there by your own circumstances your own choices and that was very much within your control and what you've just said there Silna finances don't come into play here you cannot use financial reason for an out of control we're talking generally then health I would imagine yes or some other that's my own event what I mean by that act of God and that's a legal term yes so act of God obviously being something completely out of control of any other person you can't blame anyone it happened through as you've said an act of God so unfortunately in this instance thank you so much that was a wonderful question in this instance unfortunately the landlord here is the person who's going to lose out actually more tenant B because he is going to have to pay for his accommodation okay true in the time he can't take occupation and obviously tenant A and we didn't mention that so I'm very happy we're taking this little turn tenant A will be responsible for pro-rated rent up to the point where they can vacate that was going to be the landlord's out of pocket because now you've extended but no that's tenant A who's due so even if you've been hospitalized with COVID if you have extended past where your lease was ending you're liable to pay that 100% pro-rated rent at the very least I'm so glad you mentioned that I'm so glad you asked wonderful you're welcome to join in the conversation across our private property platforms let us know what your experiences have been with this are you somebody who perhaps found yourself on the receiving end of this were you a COVID victim yourself in hospital and you came out of hospital having to now sort this out you can comment in our comment section start the conversation and if there is anything that comes up from that then perhaps we will include it in future episodes of this your property rights podcast joined in studio by Silner thank you very much Silner for joining us for another one thank you Paul it was fun as always very insightful I'm Paul Rotherham and this has been another podcast proudly brought to you by Private Property your property rights podcast is proudly brought to you by Private Property leave a comment or ask a question to join the conversation