Is your tenant refusing access to the property?
Tenants often kick their heels in and refuse access to the premises. On the one hand, a tenant’s privacy and use of the property is strictly protected by rental law, but the law equally protects a landlord’s right to reasonable access to the premises. So, what is reasonable access and why should a tenant provide it?
One of the most frequent queries received by the TPN Legal Team is from landlords or property practitioners whose tenants are refusing access to the property for any of the following reasons:
- The lease agreement has not been renewed, and the tenant is refusing access to the property practitioner trying to market the property to prospective tenants;
- The owner is selling the property and the tenant is refusing access to the property practitioner trying to market to prospective purchasers;
- The owner needs to perform repair and maintenance work within the property and the tenant refuses to provide access for the work to be done.
Industry standard: reasonable notice is 48 – 72 hours before access
In terms of the lease agreement, there should be a clause where the tenant agrees to provide access to the property, provided that the tenant is afforded a reasonable notice for such access.
Industry practice has shown that reasonable notice for access to the property is between 48 and 72 hours prior to the required access. Weekly requests for access to the property would not be regarded as reasonable.
What if the tenant refuses access with reasonable notice?
If the above notice is given and the tenant still refuses to provide access to the property, without a valid reason for such refusal, then the landlord will need to demand, by way of Letter of Demand, that access is provided within 7 days from receipt of a written notice requesting access.
If access is not provided within this time period, then the landlord will need to approach the relevant court for an interdict ordering the tenant to provide access. The legal costs of this application will be for the tenant’s account, in accordance with the costs clause of your lease agreement.
If there is an urgent reason that access must be provided, but the tenant is refusing, without a valid reason, then we recommend that attorneys are contacted immediately for the lodging of an urgent application to gain access.
Tenants may be liable for losses or damages due to refusing access
In the event that a tenant refuses access to market the property to prospective tenants or buyers and the landlord suffers any losses or damages as a result of the tenant’s refusal to provide access, then the owner is entitled to hold the tenant liable for such losses or damages, provided that a competent court has specifically ordered that the tenant is actually liable for such costs, and you have received a court order to charge them the damages.
As one can see, there are a lot of potential monetary consequences for both parties should access be denied as agreed to in the lease agreement. A better understanding of the severe consequences for either party can reduce the amount of access disputes across South Africa and ultimately, allow for improved landlord and tenant relationships when it comes to accessing the property.
Not sure if your lease agreement adequately covers the necessary provision for reasonable access? Download the TPN Residential LeasePack here.
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