Question posted in the Landlord Tenant Law category relating to Western Cape
Hello,
I need some help with the CPA law and the cancellation of a lease agreement.
I want to cancel the lease of my student accomodation, but they say that if I leave I have to still pay for the rest of the year.
I need help please.
Thanks.
Message from the Attorney
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.
Well, they are wrong!
The starting point is that section 14(2) of the Consumer Protection Act ("the CPA") gives you the legal right to cancel any fixed term agreement, like a lease agreement, for any reason, by giving the landlord 20 business days' notice - which amounts to 4 weeks. The important aspect is that you can cancel the agreement for ANY reason you want, and at any point in time during the agreement. The landlord can't stop you from exercising your rights.
The second point is that the lease agreement can't infringe on your CPA right to cancel the lease. The lease can't say that you must give more than 20 business days' notice. The lease also can't say that you must pay until the end of the lease. The lease also can't state that you will be charged a massive cancellation penalty or that you must find a new tenant to take over from you.
Section 14(3) of the CPA does state that the landlord can charge you a reasonable cancellation penalty. This normally amounts to 1 months' rental. So, maybe the landlord can keep your deposit?!
Otherwise, if the landlord wants to threaten you, you can tell the landlord to take you to the Rental Housing Tribunal and they will sort out the dispute. Also, tell the landlord that you have got advice from a lawyer and you suggest that he reads section 14(2) of the CPA for himself!
If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.
Att. Patrick
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Message from the Customer
I will attach here what their service and residence agreement says:
"14. CANCELLATION POLICY
14.1 The Resident may choose to cancel this Agreement prior to the Check-out date of Your Stay.
14.2 The Resident should request such cancellation in writing from CampusKey by giving 20 Business Days’ written notice by email to ***BLOCKED-EMAIL-ADDRESS***, in which event:
14.2.1 the Resident will remain liable to CampusKey for any amounts owed in terms of this Agreement, up to date of cancellation; and
14.2.2 CampusKey will be entitled to impose a reasonable cancellation penalty on the Resident, as set out in Annexure C: Cancellation Policy.
14.3 The Cancellation Policy is applicable whether the Resident or CampusKey affects the cancellation."
The Annexure C: Cancellation Policy says:
"THE RESIDENT CANCELS AFTER SIGNING THE SRA, AFTER 1 NOVEMBER 2019 BUT
BEFORE 1 JUNE 2020:
Cancellation penalty
R5,000 if the Resident finds a suitable replacement student to sign a new SRA for the room for the remaining period of the Agreement .
If not, R5,000 plus 50% of the SRA Fee due for the remainder of Your Stay.
The aforesaid will be deducted from the SRA fees paid to date. Alternatively, if there
is no balance of SRA fees or if the balance of the SRA Fees is not enough to cover the aforesaid the Resident will have to pay the aforesaid amounts directly to CampusKey as provided for in clause 13 and 14 of the SRA.
Admin Fee (non-refundable) Admin fee paid is non-refundable.
Deposit
Only the balance of the deposit will be refunded after the deduction of the cancellation fee and subject to the Deposit Refund Policy.
SRA Fee
The resident is responsible for all the SRA fees up to date of cancellation. The balance of the SRA Fees paid in advance less the aforesaid cancellation penalty shall be refunded to the Resident (if applicable)."
"THE RESIDENT CANCELS AFTER SIGNING THE SRA AND AFTER 1 JUNE 2020:
Cancellation penalty
R5,000 if the Resident finds a suitable replacement student to sign a new SRA for the room for the remaining period of the Agreement.
If not, 100% of the SRA Fee due for the remainder of Your Stay.
The aforesaid will be deducted from the SRA fees paid to date. Alternatively, if there
is no balance of SRA fees or if the balance of the SRA Fees is not enough to cover the aforesaid the Resident will have to pay the aforesaid amounts directly to CampusKey as provided for in clause 13 and 14 of the SRA.
Deposit
Only the balance of the deposit will be refunded after the deduction of the cancellation fee and subject to the Deposit Refund Policy.
SRA Fee
Subject to whether the Resident found a replacement student, the resident is responsible for all the SRA fees up to date of cancellation. The balance of the SRA Fees paid in advance less the aforesaid cancellation penalty shall be refunded to the Resident".
Do you think we have the right to apply the CPA Law?
Note that this a student accommodation (CampusKey Rosebank) and not a normal apartment.
Message from the Attorney
Q: Do you think we have the right to apply the CPA Law? --> Most definitely, yes, 100% yes. The CPA was drafted to protect you in this exact situation!
Note that this a student accommodation (CampusKey Rosebank) and not a normal apartment. --> That's fine.
I unfortunately can't draft the letter for you, but you can follow the following as a guideline.
Dear ....
section 14(2) of the Consumer Protection Act ("the CPA") gives me the legal right to cancel any fixed term agreement, like a lease agreement, for any reason, by giving the landlord 20 business days' notice.
I am hereby giving you the required notice of cancellation.
While I acknowledge that section 14(3) of the CPA does give you the right to charge a cancellation penalty, that penalty needs to be reasonable.
Your cancellation penalty is not reasonable in that it seeks to charge me rental for the rest of the year! I will therefore not comply with it.
I hereby tender 1 months' rental as a cancellation penalty.
Kind regards
You can add in whatever else you want.
Good luck!
Message from the Customer
One last question, in my case I am paying monthly so I can say that I will only pay for one month rental as a cancellation penalty.
But if I had already paid for the entire year? Can I say that they have to refund me for the time that I am leaving (minus a month of rental)?
Thanks.
Message from the Attorney
One last question, in my case I am paying monthly so I can say that I will only pay for one month rental as a cancellation penalty. --> Yes, exactly.
But if I had already paid for the entire year? Can I say that they have to refund me for the time that I am leaving (minus a month of rental)? --> Yes, but then you need to fight to get the balance of your money back. Refer the dispute to the Housing Rental Tribunal maybe.