A judgment that was handed down in the Western Cape High Court on 28 July 2016 has come to my attention, which I would like to share with you all. It highlights once again, the need for agents to ensure that they do not breach the terms of a mandate, and the severe consequences it can bring with it, when they do.
The facts of the matter are simple. An agent received a mandate to place a tenant and it was an express term of the mandate that the landlord first does his own vetting of any potential tenants. The agent showed the property to a potential tenant, did a background check, found it to be satisfactory and then gave the tenant access as it was nearly month end. The tenant signed a lease; paid a deposit as well as the rental. The agent then only advised the landlord. The landlord conducted his own background checks, found the tenant to be unsuitable, and insisted that the agent removes the tenant. The agency agreed that it would do all it could to find alternative accommodation for the tenant but after a few weeks of being unable to find alternative accommodation, the landlord (despite receiving rental) brought an urgent high court application to compel the agency to restore vacant occupation to the landlord.
The end result was a successful application against the agency. An order was granted against the agency to restore vacant occupation within 3 days of the order, and to pay the landlord’s costs.
It remains a mystery as to how exactly the agency was supposed to do this, but the “scary part” is that when the agency applied for leave to appeal this judgment, it was refused by the judge that heard this matter, and an attempt by the agency to then apply for leave to appeal to the Supreme Court of Appeal, was also refused by that court!
To make matters worse, the tenant then also fell in arrears with making payments. Because the agency was unable to persuade the tenant to move out, the landlord then brought an application for eviction which took several months. The tenant then eventually moved out. The end result for the agency is that it had to fork out tens of thousands of Rands for its own legal fees; R60 000 for the arrear rental and costs to evict the tenant and another stash of money for the landlord’s legal fees for the High Court application to restore possession.
This is a stern reminder to agents, not to ignore a client’s instructions, regardless of best intentions.