What South African Landlords Should Know About "Unit-Hopping" Tenants And Withheld Rent

When the Lease goes Sideways

In a textbook example of how quickly a straightforward lease can unravel – a client's tenant has taken it upon herself to occupy a different unit, without consent – while the client (the landlord), in frustration, has stopped paying municipal charges. Predictably, the tenant has retaliated by withholding rent. Untangling this stand-off starts with a clear grasp of each party's rights and duties under South African law, but the real value lies in understanding where those rights end and the risk of liability begins.

The lease as a reciprocal bargain

South African common law treats a lease as a contract of reciprocal performance: the landlord must provide the use and enjoyment of a specific premises in a fit condition, and the tenant must pay rent and respect the agreed-upon boundaries of occupation. When either side breaches, the other may suspend its own performance – but only if the breach goes to the heart of the bargain and only after following proper procedure. Failing to pay municipal rates, therefore, is not an automatic licence for the tenant to stop paying rent, and moving into another unit is certainly not a lawful response to a landlord's lapse.

Why "self-help" backfires on landlords

Many owners view withholding municipal payments, or cutting electricity and water supply, as a quick way to exert pressure. In practice, it is precisely the opposite:

• Statutory exposure. The Rental Housing Act 50 of 1999 renders any "spoliatory" conduct by a landlord (for instance, unlawfully interrupting services) a prosecutable offence.
• Contractual breach. A landlord who stops paying municipal rates typically violates an express or implied term of the lease that the premises will remain properly serviced; that breach, in turn, empowers the tenant to seek a reduction (remission) in rent or rescind the contract altogether.
• Public-law consequences. Municipalities can recover outstanding charges directly from the property owner, and service interruptions often spark complaints to the Rental Housing Tribunal, which has wide remedial powers, including the imposition of penalties.

The upshot is that what feels like leverage often becomes a double-edged sword. It undermines any subsequent eviction application because a court, applying the Prevention of Illegal Eviction and Unlawful Occupation of Land Act 19 of 1998, must weigh the conduct of both parties when deciding whether eviction is "just and equitable."

Tackling an unauthorised move

A tenant who migrates to another unit without permission commits a breach that strikes at the heart of the lease – the right of the landlord to decide who occupies which space. The landlord's remedy is not to wage a municipal rates war but to follow a disciplined, contractual path:

1. Put the breach on record. A formal notice, couched as a letter of demand, should identify the breach (unauthorised occupation), fix a reasonable deadline to vacate the additional unit, and reserve the landlord's right to cancel the lease if compliance is not forthcoming.
2. Inspect and document. Conduct an inspection (on notice) of both units, recording any damage; contemporaneous photographs or video often prove decisive if the matter progresses to tribunal or court.
3. Consider partial cancellation. If the tenant refuses to move back, the landlord may cancel the lease in respect of the second unit only – a useful middle ground that preserves rental income without rewarding opportunistic behaviour.
4. Escalate with precision. Should the tenant still default, the landlord can cancel the entire lease, claim arrears (including any unlawful occupation damages), and commence eviction proceedings while continuing to invoice rent – a stance our courts have repeatedly endorsed.

Throughout, the landlord must remain fully compliant with his own obligations: keeping municipal accounts current, addressing maintenance complaints, and refraining from any form of harassment. These steps not only strengthen the merits of an eviction application but also protect against claims for "constructive eviction" or retaliatory practices, which the Consumer Protection Act 68 of 2008 and recent tribunal decisions have viewed with increasing scepticism.

Damage control when rent stops flowing

It is tempting to view unpaid rent as the tenant's only fault here, yet the courts distinguish sharply between a payment strike and a lawful set-off. A tenant may withhold or reduce rent only when the landlord's breach renders the property partially or wholly unusable and only to the extent of that impact. By continuing to occupy both units while paying nothing, the tenant has overplayed her hand, creating a straightforward debt-collection claim for the landlord. To preserve that claim's integrity, our advice to the landlord would be to:

• Issue monthly statements reflecting the arrears (demonstrating an unbroken expectation of payment);
• Allocate any payments first to arrears municipal charges if the lease so provides, forestalling a tenant argument that "I paid what I could"; and
• Keep a clear paper trail showing that the sole reason for non-payment of utilities was the landlord's conscious decision – important mitigation if the tenant later alleges service-delivery failure.

The bigger picture for landlords

Two broader lessons loom large. First, process beats pressure: every sophisticated landlord systemises breach notices, inspections and escalation paths, precisely to avoid the improvisation that leads to regulatory trouble. Second, cash-flow insurance is cheaper than litigation: whether through deposits, sureties or rent-guarantee policies, landlords who insulate themselves financially seldom feel tempted to resort to unlawful shortcuts.

In this matter, the likely endgame combines recovery of arrears, restoration of lawful occupation, and, if necessary, eviction – each step fortified by procedural correctness. The tenant's manoeuvre does not excuse her from paying rent; equally, the landlord's failure to keep municipal accounts up to date is no justification for self-help or heavy-handed tactics. By refocusing on the reciprocal nature of the lease and letting statutory remedies do the work, the landlord transforms a messy standoff into a manageable, legally coherent strategy; one that protects both the revenue stream and the reputation of a responsible property owner.