Question posted in the Landlord Tenant Law category relating to Western Cape
I am a pensioner and my pension is R8900 per month. My wife was appointed procurement manager at a Lodge and Resort with a salary of R10 000 per month with effect 16 March 2020. Her employment contract stipulates that she will be temporary and on probation for the first month. She signed a rental lease agreement on 19 March 2020 (with me as co-lessor) for a townhouse with a monthly rental of R7600 per month and date of occupancy 1 April 2020. We paid R7600 deposit, R900 admin fee and R11 200 rent in advance. The national lockdown was enforced on 26 March 2020 and we could not occupy the house on 1 April 2020. We asked the landlord that the lease agreement be amended with date of occupation 17 April 2020, when the national lockdown would have been lifted. The national lockdown was extended to 30 April 2020 and we asked the landlord to amend the lease agreement to 1 May 2020. My wife has now been notified by her employer that her contract will not be extended beyond the first month which was temporary and a probation period, ending 16 April 2020 , because of financial pressure on her employer caused by the national lockdown. This mean that only my pension of R8900 remain. We have no other option than to cancel the lease agreement and ask for a full refund. We never occupied the house because of the national lockdown. What are our rights regarding the refund? We made use of Just Property real estate agency.
We never received confirmation from the estate agent or landlord that the lease agreement was indeed amended in terms of date of occuupancy as per our request. We were also not requested by the estate agent or landline to sign a revised lease agreement.
Answer to the Question
Hi there and thank you for your question,
I am a practicing attorney based in South Africa and I will assist you with your question. Please feel free to ask as many follow up questions in order to clarify your question. If you have a new question, you must please open a new thread.
Okay, so firstly, the fact that your wife's contract is not going to be renewed does not mean that you can now cancel your lease agreement. The two are not linked at all.
However, your lease agreement is governed by the terms of the Consumer Protection Act (the CPA). In terms of the CPA, you are entitled to cancel any fixed term contract (like a lease agreement) by giving the landlord 20 business days' notice of cancellation. The landlord is required to accept the cancellation however he is entitled to charge you a reasonable cancellation fee, which is generally accepted to be equal to 1 or 2 months' rental.
So, your landlord MUST accept your cancelled lease, however he can charge you about R15 200 as a penalty.
Coming to your lease agreement. The only way to change the commencement date of the lease is by agreement between the parties. So, if he won't agree to this (change the commencement date of the lease) then he is at risk that you will then exercise your CPA rights and cancel the lease. He will then be without a tenant.
The issue with the lockdown is that the regulations say that YOU can't take occupation of the rental property. The regulations do not say that he can't rent the property out to you.
The articles recently about "force majeure" do not therefore apply to your situation. The reason being is that the regulations have not made it impossible for the landlord to comply with his obligations to make the property available to you. If the regulations did make it impossible for him to make the property available to you, then you could have refused to pay rental.
So, what you're left with is you would need to pay rental for April.
You would need to give the landlord 20 business days' notice to cancel the lease. If you did that tomorrow, your lease would come to an end on 13 May. You would therefore need to pay rental for the period 1 May to 13 May.
Then, the landlord would be entitled to 1 or 2 months' rental as damages, so that might be between R7600 and R15200 - like I said above.
You would then be entitled to the return of your R7600 deposit.
I unfortunately do not see a way (unless the landlord agrees) that you will walk away with a cancelled lease and a full refund.
Given the above is your worst case situation, why don't you try negotiate with your landlord. Perhaps he will accept a cancellation now, and he can keep the deposit? That seems, to me, to be a good middle ground.
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