Differance Between Notice of Breach and Notice of Termination – Khanyisile Mabunda

Posted in

BEFORE YOU EVICT, UNDERSTAND THE DIFFERENCE BETWEEN A NOTICE OF BREACH VS A NOTICE OF TERMINATION

Often, when a tenant breaches a lease agreement, landlords are confronted with the important — yet frequently misunderstood distinction between a Notice of Breach and a Notice of Termination. Many landlords assume that serving either notice will automatically result in the termination of the lease agreement and help reclaim possession of their property. This misconception has led to numerous defective cancellations and unsuccessful eviction applications. Understanding when to issue a breach notice and when to issue a termination notices important before instituting an eviction application.

WHAT IS NOTICE OF BREACH?

A Notice of Breach is a formal communication from the landlord to the tenant, indicating that the tenant has violated the terms of the lease agreement. Common breaches include non-payment of rent, property damage, unauthorised subletting or other lease violations.

What’s important to keep in mind is that this notice is not intended to terminate the lease immediately but to provide the tenant with an opportunity to correct the breach within a specified timeframe.

When the lease is governed by the Consumer Protection Act, the landlord must usually allow the tenant 20 business days to remedy the breach before the lease agreement can be lawfully terminated.  If the tenant remedies the breach within this period, the lease agreement remains valid and continues as normal.

WHAT IS A NOTICE OF TERMINATION?

A Notice of Termination is the formal cancellation of the lease agreement. It is issued either:

  • After the tenant has failed to remedy the breach within the prescribed period, or
  • In the case of a month-to-month lease, where the landlord chooses to terminate on proper notice.

Unlike a notice of breach, a notice of termination ends the contractual relationship between a tenant and a landlord. It informs the tenant that the lease has been cancelled and requires them to vacate the premises by a specified date.

This step is crucial because, in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE Act), a tenant only becomes an “unlawful occupier” once the lease has been lawfully terminated. Until that point, even a tenant in arrears remains legally entitled to occupy the property without a validly terminated lease agreement.

WHY THE DISTINCTION MATTERS IN EVICTION PROCEEDINGS

Courts are strict when it comes to procedural compliance in eviction matters. A landlord cannot approach the court for eviction merely because the tenant is in breach of the lease agreement. The lease must first be validly terminated.

Common mistakes made by landlords include:

  • Combining the notice of breach with the termination notice without careful attention to legal compliance;
  • Cancelling a lease agreement immediately without allowing time to remedy the breach;
  • Assuming non-payment automatically terminates the lease, etc.

Please keep in mind that if the cancellation is defective, the court may find that the tenant is not an unlawful occupier, which may result in delays in getting an eviction order, wasted costs and the need to restart the process.

CONCLUSION

The difference between a Notice of Breach and a Notice of Termination is the cornerstone and foundation of a lawful eviction. A notice of breach creates an opportunity to correct the violation, while a termination notice ends the lease agreement. For landlords, understanding and correctly implementing these steps can mean the difference between a smooth eviction process and months of unnecessary litigation costs.

Disclaimer: The above should not be accepted as legal advice, and you are encouraged to seek legal advice.

Written by Khanyisile Mabunda