Question

B

Russell wanted to open a lunch bar in a shop located on the ground floor of a building owned by Greta. He entered into a lease with Greta; the agreement gave Russell exclusive possession of the shop for a period of two and a half years commencing 1 January 2019 and concluding on 30 June 2021.

In July 2019 Greta decided she wanted to undertake renovations to the building containing Russell’s shop. The work required the erection of scaffolding at the front of the shop that prevented customers from using the footpath outside. This had an adverse impact on passing trade. Russell was unhappy about this situation so he ceased making weekly deposits into Greta’s account. Greta was angry about not receiving the income she desperately needed to help pay for the renovations so, on several occasions when Russell was busy serving customers she entered the shop and yelled abuse at him.

Russell now seeks your advice regarding his rights under the common law.

Answer 1

Russell has a lease signed with Greta and as such he is a rightful occupier of the shop. As a tenant, he has a property interest in the shop for a period of two and a half year upto 30 June 2021. Under common law he is entitled to use of the property untill the expiry of the lease period. Under common law, by granting the granting of the tenancy Greta has deprived herself of the right to possession of the premises during the currency of the tenancy. Under common law, a landlord must give 24 hours of notice to the tenant before entering the rented premises which Greta has never given. Since she enters the shop without the permission of Russel, she can be treated a trespasser and Russel can sue her for tresspass.

Further, as the tenant Russel gets the right to have an unrestricted access to the rented property which is necessary for its use. As the landlord, Greta, of course, has right to get the building repaired but at the same time her right is not absolute. She must honour the right of Russel to use the property for the purpose for which he had hired it. The erection of scaffolding at the front of the shop has prevented Russel's customers from using the footpath outside which has had an adverse impact on his passing trade. Further, her creating nuisance when Russell is serving his customers is definitely a wrongful behaviour. If the tenant faces any harassment from the landlord or if the landlord violates the terms of the tenancy agreement, the tenant has the right to approach the courts. Hence, Russel has the right to sue Greta for damages for her tortuous behaviour as also for loss of business.

However, Russel's rights are not absolute, his rights are also subject to the obligation of paying rent regularly. Russell has ceased making weekly deposits into Greta’s account. When a tenant does not pay rent, the landlord has the right to contact the tenant for collecting the rent, and Greta could take this plea as a defence for her act of tresspass. Hence, I would advise Russel to clear his rental dues before he takes any action against Greta.