Hello. I am wanting to rent a commercial...

Asked by ChantelM on 21-02-2021 09:48:53
Question posted in the Property Law category relating to Western Cape

Hello. 

I am wanting to rent a commercial property in a building called Salt Circle in Woodstock, Cape Town. 

It's my first time renting any commercial property and after reading the contract, some of the clauses seem rather unfair towards to the tenant, specifically the sections about 'destruction' and 'the landlord's rights and obligations.'

I would just like to know if clauses like this are legal and allowed? 

I have attached the copied text from the lease agreement below: 

9. THE LANDLORD'S RIGHTS AND OBLIGATIONS

The Landlord shall:9.1 be entitled to carry out any repairs, additions or alterations to the Premises which the Landlord may be requiredfrom time to time to carry out by any competent authority and if same shall have been necessitated by any act ordefault on the part of the Tenant or by virtue of the nature of the Tenant's business to recover the cost thereofforthwith from the Tenant.9.2 be entitled at any time to carry out any repairs, additions, alterations, renovations and the like to the Building or theland upon which the Building is situate of whatsoever nature. In the event of the Landlord carrying out any of theaforegoing, the Tenant shall have no right to claim any rebate of rental and costs during the period in which the saidwork may be in progress nor shall the Tenant have any claim for any damages of whatsoever nature;9.3 For the purposes of 9.1 and 9.2, the Landlord shall be entitled at any time:9.3.1 to erect at, near or in front of any part of the Building or the Premises9.3.1.1 the building equipment required for the carrying out of that work; and9.3.1.2 such other equipment or devices as may be required by law or which the Landlord's architectconsiders reasonably necessary for the protection of any person or property against injury arisingout of that work.

9.3.2 to such right of access to the Building and/or the Premises as is reasonably necessary for the carrying outof that work.

9.4 in exercising its rights in terms of 9.29.4.1 not unnecessarily or unreasonably interfere with the carrying on of the Tenant's business in the Premisesor access thereto during the execution of that work;9.4.2 carry out such work as quickly as possible in the circumstances;9.4.3 not be responsible for any loss or damage to person or property arising out of the execution of that work;9.4.4 not be liable to the Tenant for or in respect of loss of beneficial occupation, loss of profits or otherwisearising out of the execution of that work.

9.5 not be deemed to have warranted or represented to the Tenant that the Premises are fit for the purpose for whichthey will be occupied by the Tenant or that the Tenant will obtain any licences, permits or authorities required forthe carrying on therein of the Tenant's business or that any licence, permit or authority will be renewed from time to

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Initial here : Tenant & Witness

time.9.6 be entitled to affix to and show on the windows of the Premises or elsewhere thereon "to let" notices during theperiod of six months immediately preceding the expiration of this Agreement;9.7 be entitled at any time during the currency of this Agreement and in its sole discretion to change the name of thePremises;9.8 be entitled to inspect the Premises at all reasonable times either in person or through any authorised agent orrepresentative;9.9 not be under any obligation to make any repairs, maintenance or alterations of any nature to the Premises, tocomply with the requirements of any licensing authority, health official, factories inspector or official, fire inspectoror any other official or authority but shall not unreasonably withhold consent to the carrying out by the Tenant athis expense of any such work, maintenance, alterations or repairs provided that the Landlord shall be entitled torequire same to be effected by a builder or with the approval of or under the supervision of an architect nominatedby the Landlord, and the Tenant shall not be entitled to any compensation for any work or improvements effectedby him in terms of this clause;9.10 keep and maintain the roof and exterior structure of the Building (including the gutters and the downpipes butexcluding the glass in the windows and doors of the Premises) in good order and condition save where any suchrepairs are necessitated by any actual or attempted forcible entry or burglary to the Premises by any personwhomsoever, or arising out of any act or omission on the part of the Tenant, its directors, servants, employees,agents, customers or invitees;9.11 Not Applicable.9.12 be entitled, in the event of the Premises being served by means of an air conditioning plant, lifts or escalatorscontrolled by the Landlord, to determine from time to time reasonable rules in respect of the switching on and offthereof.9.13 be entitled at any time during the currency of this Agreement and in its sole discretion to change the name of theBuilding and the Tenant shall have no claim against the Landlord for compensation, damages or otherwise byreason of such change in name;9.14 be entitled, but not obliged, if the Tenant fails to fulfil any obligation to perform any act which it was obliged tofulfil or perform in terms of any clause of this Agreement, to fulfil such obligation to perform such act for and onbehalf of the Tenant and the Tenant shall be liable for all or any costs incurred by the Landlord thereby, or as aconsequence of such fulfilment or performance;9.15 be entitled in its sole discretion to appropriate any amounts received from the Tenant towards the payment of anycause of debt or amounts owing by the Tenant to the Landlord whatsoever.

10. DESTRUCTION

10.1 Should the Premises be destroyed or damaged to an extent which prevents the Tenant from having beneficialoccupation of the Premises or should the Premises be destroyed or damaged to a lesser extent than aforesaid, by acause against which the Landlord is not validly insured, then:10.1.1 the Tenant shall have no claim of any nature whatsoever against the Landlord as a result thereof;10.1.2 the Landlord shall be entitled within 60 (Sixty) days after such destruction or damage to advise the Tenantin writing that it intends to reinstate the Premises;10.1.3 should the Landlord not, within the aforesaid period, notify the Tenant of its intention to reinstate thePremises, then the Landlord shall be deemed to have elected to cancel this Agreement.

10.2 Should the Landlord elect (or be deemed to have elected) to cancel this Agreement, then the Tenant shall have noclaim whatsoever against the Landlord as a result of that cancellation.

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Initial here : Tenant & Witness

10.3 Should the Landlord elect to reconstruct the Premises then:10.3.1 this Agreement shall not be cancelled and the Landlord shall at its cost reinstate the Premises substantiallyto its previous state as quickly as is possible in the circumstances;10.3.2 the Tenant shall not be liable for any further rent for as long as it is deprived of beneficial occupation ofthe Premises;10.3.3 the period of this Agreement shall be extended by the period during which the Tenant is deprived ofbeneficial occupation of the whole of the Premises.

10.4 Should the Premises be damaged by any cause against which the Landlord is validly insured, but to a lesser extentthan that which prevents the Tenant from having beneficial occupation of the Premises, then:10.4.1 this Agreement shall not be cancelled;10.4.2 the rental payable by the Tenant shall be reduced pro-rata to the extent (if any) by which the Tenant isdeprived of beneficial occupation of the Premises;10.4.3 the Landlord shall at its own cost repair the Premises as quickly as is possible in the circumstances;10.4.4 the Tenant shall have no claim of any nature whatsoever against the Landlord as a result of the saiddestruction or damage howsoever arising.

10.5 The provisions of this clause 10. shall become applicable on signature hereto and shall apply irrespective ofwhether the contemplated destruction occurs before or after the Commencement Date.10.6 Should a dispute arise between the Landlord and the Tenant in respect of the amount of rental payable by theTenant in terms of subclause 10.4.2 then such dispute shall be settled by arbitration in terms of the Arbitration Act1965 (as amended from time to time), save that the arbitrator in such proceedings shall be agreed upon between theLandlord and the Tenant and failing Agreement, nominated by the President for the time being of the Law Societyof the Cape of Good Hope.

Answer to the Question

Posted by Att. Patrick on 21-02-2021 10:52:52

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. 

I have seen, and negotiated, many many commercial lease agreements and I must tell you that every single one of them contained those clauses, or very closely worded clauses. 

The clauses are perfectly legal and can be enforced in court. 

If you don't like the clauses then you must negotiate with the landlord to remove the clauses from the lease agreement, however I can almost guarantee you that the landlord won't remove them because they give the landlord (or a future owner of the property) rights to redevelop or rights if the property is destroyed. 

I think that the reality of the situation is: accept these clauses, or find another premises. 

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 

Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.

Answer Accepted

This answer was accepted on 23-02-2021 07:52:13

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