POLOKWANE – A roof over their heads is the biggest monthly expense for most residents. Amid the lockdown and a loss of income, many tenants have had to renege on their rental agreements. Where does leave tenants and their landlords
Government acknowledges the financial impact the lockdown has had on businesses as well as individuals, and furthermore instructed that landlords are not allowed to evict non-paying tenants during the lockdown.
Review spoke to Gert Ehlers from DDKK Inc. about the rights of tenants and landlords respectively under these circumstances and how it will affect them in the long run.
“The age-old legal principle of pacta sunt servanda which in Latin means that agreements must be kept, is recognised and applied in South Africa when dealing with contracts. Both tenants and landlords should start by scrutinising the terms of their lease agreement to have a good idea of what their rights are. The fact that government’s regulations at present do not allow landlords to legally evict tenants does not mean that tenants may stop paying rent or that there will be no consequences for not paying rent in full or at all.”
He further explained that all terms of the lease agreement or contract, in as far as it is not in conflict with any act or regulation, will remain applicable and enforceable between the parties and these terms are to be adhered to and honoured as far as it is possible.
“Simply put, a tenant is to pay rent for as long as he or she occupies the leased premises. This is where it might get tricky as the reality is that many tenants lost their entire income, or at least a considerable portion thereof.”
The unfortunate and unavoidable effect of this is that it might be impossible for a tenant to pay the monthly rent in full or even in part. This is where the specific terms of the lease agreement will be vital in determining what the way forward should be and what the tenant’s and landlord’s respective rights and options are.
“More often than not the practical way forward will be for a tenant and a landlord to discuss the situation and the way forward by seeking a solution which will work for both parties,” says Ehlers. The landlord might agree to reduce the monthly rent for a specific period or until the tenant will be allowed to earn an income again. The tenant might, in turn, agree to compensate the landlord at a later stage for the reduced rent paid during the lockdown period. The tenant and landlord should ensure that this agreement is done in writing, so as to avoid misunderstandings.
But, guards Ehlers, seeking the court’s intervention should be the landlord’s last avenue. “Litigating in court should be the absolute last resort for the parties as it is usually expensive and might not meet the expectations. We are experiencing difficult times and we all have to deal with a situation we have never been in before. As such, creativity and cooperation between tenants and landlords will in most cases be the best option in the long run.”
The reality is that the lockdown will ultimately have the unfortunate effect that some landlords will lose rental income in the long run, which they may never be able to recover.
“Some tenants might eventually end up being evicted once it is permissible and might further be held liable by a competent court for the payment of unpaid rent. We do not know what the courts’ attitudes will be in dealing with these matters. Without prophesising, one should not ignore the possibility that the legislator might come to the assistance of tenants, landlords and even the courts in dealing with these matters. One thing remains certain, almost everyone will be affected negatively as a result of the implications of the lockdown, irrespective whether you are a tenant or landlord,” Ehlers concludes
