What to do if you want to move back into your property while your tenant still has occupancy
Q: “I rented out my property but now wish to return and take up occupancy. Am I within my rights as the property owner to remove the tenant, and what do I do if they refuse to vacate?”
A: There are two issues to consider. Firstly, your tenant is the current lawful inhabitant and you want to serve a notice to quit, so that you can resume occupancy. The process for this is straightforward. Secondly, what if the tenant refuses to leave, despite due legal process of eviction having been followed? This is a different and more complicated scenario. Let’s look at each in turn.
To some extent, your rights as landlord depend on what is in the lease agreement. (We’ve written before about the importance of having a written lease. See Tips for a happier tenancy and The Consumer Protection Act and rental agreements.) Under PIE, your tenant is protected against illegal eviction. The Consumer Protection Act (CPA) provides a further layer of protection. In terms of the CPA a tenant is protected for the full term of the lease if there is no material breach on their part. The landlord can cancel the lease if there is a material breach of contract by giving 20 business days’ notice of the breach; but the landlord must give the tenant the opportunity to remedy the breach. Provided they do so, you don’t have the right to evict the tenant and move back in until the end of the contract.
However, when drawing up the lease, it is permissible to include a clause allowing the landlord to cancel the lease, with two months’ notice, if the landlord elects to sell the property or move back in. If the tenant agrees to this clause and signs the contract, then there does not need to be a material breach for the landlord to give notice of eviction, nor is the landlord in breach of any aspect of the tenant’s rights. Without this clause, the tenant is protected upon the sale of the property and the sale can have no impact on the tenant’s right to hold the lease until it expires.
So if you are drawing up a lease agreement for a new tenant and you think you may wish to sell the property in future or resume occupancy for your own purposes, it’s probably wise to include a clause of this nature. But what if you have existing tenants and you have legally given them notice to quit the property, within the terms of the lease and the CPA (perhaps there has been an unremedied breach), and they won’t budge? This is a different situation altogether. What can you do?
At this stage the tenant becomes an unlawful occupier. If you have cancelled the lease lawfully you are entitled to move back into your property, even if the unlawful occupier remains on the premises – effectively cohabiting (whether you would want to do this or not is a different matter). The situation can deteriorate and may result in unpleasant consequences for the landlord, even if there is no misconduct. A tenant with nowhere else to go may behave in a desperate manner, even laying charges of theft, harassment or intimidation against the landlord. Or they may insist the landlord find them alternative accommodation. However, it is not the landlord’s responsibility to re-house the tenant, and this has been tested in the courts.
In Blue Moonlight Properties v Occupiers of Saratoga Avenue, the court found that the property owners’ rights, under the Constitution, should be balanced with those of the occupiers, and ruled that the landowners’ right to equality would be infringed if the state were to burden them with providing alternative accommodation without compensation.
This ruling notwithstanding, if you are in this trying situation, it is not enough to know you are in the right, legally. You may need professional help to reclaim your property. You certainly don’t want to find yourself defending an unsubstantiated accusation of harassment, nor do you want to be share your home indefinitely with someone you didn’t invite.