Tenant Arrested or Conducting Illegal Activity – What is the Landlord’s Responsibility?
A topic that’s becoming increasingly important for landlords and rental agents is how to handle cases where a tenant has been arrested or is involved in illegal activity on the rental property.
Navigating these situations can be challenging, with legal implications for both the landlord and the agent. As a landlord, you may also be held accountable for your tenant's unlawful actions on your property if you knew about them and did not take steps to stop them.
1. Understanding Legal Boundaries
As a property owner, it is understood that from the day you transfer the property into your name, you become liable for certain things, such as levies, municipal rates, and taxes. In addition, if the property owner conducts any unlawful activities on his property, liability for such wrongdoing will rest on him.
However, when landowners let their property to a tenant and the tenants conduct these unlawful activities on the rented premises, a question might arise when the landlord becomes liable for the tenant’s unlawful actions or activities carried out on the property.
One of the most important aspects is the legal framework surrounding tenant rights and landlord obligations. When a tenant is involved in illegal activities, landlords may feel compelled to take immediate action. However, you need to balance urgency with compliancy to avoid violating tenant rights or unintentionally breaching lease terms.
This is especially crucial when the tenant has been arrested but hasn’t been convicted of a crime. The distinction between suspicion and proof of illegal activity is key here, as it directly affects the actions landlords can legally take.
Two facts must be established to hold the landowners liable for the tenant’s unlawful actions. First, the landowners must know unlawful activities are conducted on their property. Secondly, the landowner must have failed to prevent illegal activities on the property.
1.1 Knowledge of the unlawful act.
As a point of departure, the landowner must know about the unlawful activities on his premises. He does not need to see such activities happening but must be made aware of such activities. This may take the form of a notice by a neighbour, an aggrieved party or anyone who might know the conduct.
1.2 Failure to prevent the unlawful activities from continuing.
After the landowner knows the unlawful activities conducted on his premises, he has the duty to prevent them from continuing. Sending a letter to the tenants asking them to stop those will not suffice in some instances. He must take reasonable steps to prevent the continuation of those activities. Suppose the landowner has knowledge of the unlawful activity and does not take reasonable steps to prevent it from continuing. In that case, it will appear that he permitted or consented to continue those activities.
Allowing such activities to continue in your property may lead to severe consequences for the landlord. Depending on unlawful activity on the property, the landowner might be fined up to R300 000.00 or imprisoned for three years.
2. Communication with Law Enforcement and Legal Counsel
In situations involving illegal activity, law enforcement may already be involved, and agents should understand their role in such scenarios. Rental agents can act as a bridge between landlords and law enforcement, ensuring that landlords have access to information that could be critical to any action taken.
Consulting legal counsel before making any decisions is often advisable, especially when considering lease termination. As agents, advising landlords to seek legal advice protects both them and the estate agency from potential liabilities.
3. Lease Termination and Eviction Options
Eviction may seem like the obvious solution, but it’s often not that straightforward. Although there are options available to landlords under South African law, it is important that the eviction processes must align with both the terms of the lease and legislative requirements.
Even in cases of illegal activity, landlords cannot unilaterally decide to end the lease without going through the proper legal channels. For rental agents, knowing when and how to initiate these discussions with landlords is essential for supporting them effectively.
4. Protecting the Property and Other Tenants
Landlords are understandably concerned about the safety of their property and the welfare of other tenants or neighbours. Some of the practical steps is enhancing security measures and documenting incidents thoroughly. This documentation is not only useful if the case escalates but also helps landlords demonstrate their proactive approach to maintaining property standards.
5. Maintaining Professionalism and Transparency
Dealing with sensitive situations like tenant arrests or illegal activity requires a professional approach. As agents, maintaining transparency with landlords — while respecting tenant privacy and legal boundaries — is paramount