Sucks being a tenant, what to do?

[TheG]

Hi Guys,

I'm not sure if this is the right place to post this, if not can mods kindly move where appropriate?

I'm in a bit of a predicament and just need to know what my options are.

We've been renting a house from an individual for the last 22 months and being rather comfortable. A few months ago letters started to appear at the gate, delivered there by the sheriff; It turned out that the owner was having financial difficulties.

In speaking to the owner, I was assured that - should something happen - I would be made aware of the situation as it happens and there would be ample time for me to make other arrangements. Well, I naively agreed that we would stay as we are rather happy with the place and the area. Today the sheriff posted a letter at the gate stating that the premises is set to go on auction on the 17th of Feb!!!

I was obviously rather silly in not leaving sooner, but like I said, we are rather happy here and the thought of moving is not very appealing. But now my concern is twofold:
1. I know for a fact the owner (by his own admission) does not have my deposit anymore, despite his assurances that getting my deposit won't be a problem. I believe that the owner was supposed to leave the deposit in an investment account but have not done so.
2. I'm concerned that I won't be able to get a suitable property before the 17th of Feb.

Now, the initial logical thing would be that I stay on for the month of Feb and not pay the owner for that month. This seems like the easiest solution, but I don't if this would be legal?

Should the auction materialize and the house is sold on the 17th of Feb, at what point should I vacate the premises? I was hoping that I can leave on the 28th of Feb, hopefully giving me enough time to find another place and save the month's rent to use as deposit for a new place. But the last thing I want is for people come trampling through the house - uninvited - on the 18th of Feb, or any possible legal implications as I may be squatting?

I believe that the new owners of the property are entitled to rent from the 18th, but now that defeats the object of withholding the rent for Feb as I'll be paying part of that to the new owner. I've also made peace with the fact that I won't see my deposit...

Any thoughts on this matter? Thanks so much for your help!!

[Dave A]

I hear you about notices to the owner, but has anyone given you any form of formal notice in your capacity as tenant?

Specifically, has anyone served you with notice to vacate the premises?

[TheG]

Nope, not at all. If it wasn't for my inquisitive nature in reading the notices, I would've been none the wiser.

I must also state that the initial lease was signed for 12 months (starting April 2009) and that we agreed verbally (April 2010) that we'll be staying on another 12 months. It's only after that that these notices started appearing. I've got to go dig out the original lease, but from memory the lease will revert to a month to month arrangement on maturing. Not sure if our verbal agreement constitutes a valid extension of the lease or not. I suppose this is all rather moot if the house is auctioned off though...

[Justloadit]

Even if the house is sold on the 17th, I would assume the new owner will only get custody of the house once the property has been transferred into his name, as technically is the only time that he will own the property, and can take up to 3 months for this to occur. Until then the property still belongs to the original owner.

[Ann Williams]

Actually the law states that even with a new owner you still have rights to lease the premises until such time as you have been officially given notice in writing. It is then up to you as to whether you would want to leave sooner or not.

The biggest problem here is going to be how long that notice will actually be.... You say that you had a verbal agreement that you would rent for another year, that was made in April last year? The thing is - to prove that is going to be a REAL problem. I would pretty much kiss that idea goodbye. (Let it be a warning to anyone else reading this to get any rental agreements in writing.)

So you are no doubt looking at a month's notice.... But it DOES have to be in writing, and as stated in one of the answers, is not even likely to come for a month or two yet.

Ps. If you have been renting there for longer than 10 years, it becomes a whole different story as the new owner cannot chuck you out unless you want to go. The same applies if you are an old age pensioner....

[TheG]

Thanks for the replies guys!

Look, I'm definitely moving and I know the owner does not have my deposit (as is required by law). So the question I need clarity on is this: Can I give written notice on the 1st of Feb, indicating that I won't be paying Feb's rent (to make up for the deposit) and still legally have a right to occupy the premises for the month of Feb? I'm not trying to get out of any obligation I may have towards the owner or the original lease agreement, I just want what's fair and the least painful.

[TheG]

Even if the house is sold on the 17th, I would assume the new owner will only get custody of the house once the property has been transferred into his name, as technically is the only time that he will own the property, and can take up to 3 months for this to occur. Until then the property still belongs to the original owner.

That is what I thought, till I came across this:

On the positive side, the purchaser may take immediate occupation of the property. Should the property be vacant, the process to find a tenant can be started immediately. Should there already be tenants occupying the premises, the purchaser is entitled to receive the rent payable by the tenants with immediate effect.

Found here:
here

[Dave A]

I suggest you read the paragraph in full.

On the positive side, the purchaser may take immediate occupation of the property. Should the property be vacant, the process to find a tenant can be started immediately. Should there already be tenants occupying the premises, the purchaser is entitled to receive the rent payable by the tenants with immediate effect. It is only when the property is still occupied by the ex-owner that the purchaser may first have to get him/her to move out and vacate the premises. Unfortunately, but understandably so, occupation of your freshly bought property is not guaranteed, and it may cost a significant amount in legal fees and lost income to get rid of an uncooperative owner.

You are not without rights and leverage. An amicable agreement on your fairly prompt exit does have value.

[daveob]

Discuss this with the existing owner and express your concerns.

Tell the existing owner that you'll pay the rent as soon as he transfers your deposit to your lawyers trust account for safe keeping.

Failing which, you'll with-hold the Feb rent in place of the deposit which you feel he can not refund.

Might be well worth spending a few rands on a lawyers consult to get the best advice.

[garthu]

Do NOT give in writing that you are withholding payment. Simply an immediate admission that he could take up on later and you would lose as the contract will be specific regards withholding. (regardless that he also in breach, you would have to in turn take that up as a separate matter)

I would however go that route personally and with hold the payment anyway (without the writing) and give notice you will be out on the 28th. (contractually obliged to). but thats me... note the disclaimer

Don't need to worry to much about people walking into the property although they might try to to view it before auction. My advice deny access as you never really know who these people are - you do not have to let them in.

The property has not transferred ownership to either bank or new person yet so you will have time to make arrangements but get onto it and find a place a by 28th.

Now the disclaimer bit - i suggest you seek legal advice if in doubt!!