Leases should be extended until the lockdown ends, but tenants will also then be liable for rent during that time.
DURBAN – Landlords and rental agents with tenants due to move out should offer tenants a one-month lease extension until after the national lockdown, property experts advised.
According to Andrew Schaefer managing director at Trafalgar Property Management, the leases should be extended until the lockdown ends, but tenants will also then be liable for rent during that time.
Schaefer said tenants who were due to move but are now stranded due to the lockdown will have to remain in place at least until after the nationwide lockdown.
“The State of Disaster regulations prohibit one from moving from one home to another during the lockdown period. Tenants are not required to pay rent to the new landlord until they can take occupation because these circumstances are beyond their control, and the landlord/ agent will not be able to let the property to someone else during lockdown, even if it is empty,” said Schaefer.
The national lockdown is due to end on April 30. But, the government announced a new five-level system which will see lockdown regulations relaxed in some provinces and metros depending on the rate of infection.
Property attorney Marlon Shevelew said South African case law makes provisions for unforeseen events out of the reasonable control of both the tenant and the landlord.
This is known as force majeure and in this instance, the Covid-19 lockdown qualifies as a force majeure.
Here are the implications of force majuere when applied to current lease agreements:
A residential tenant who was due to move into a new property must pay the current property being occupied
A tenant is not allowed to vacate the property, whether it is voluntary or by an eviction order
Landlords are still entitled to demand rental payment from residential tenants
Commercial tenants are entitled to a remission of rental or rebate
Using a tenant’s deposit to settle outstanding rent is unlawful (lockdown or not)
Commercial lease agreements will have a force majuere clause outlining the rules of engagement
Shevelew said: “It is important to communicate with your landlord if your ability to pay rent has been impacted by the Covid-19 lockdown. I would also encourage landlords to compassionately consider rental deferment, without using the tenant’s rental deposit, in cases where a payment cannot be honoured this month.
“However, they do need to proceed with caution and make sure there is a written agreement in place that provides for them to withdraw the indulgence under certain circumstances, for the unpaid rent to also be re-instated before the end of the lease, and for them to be able to take legal action if the tenant reneges on the special arrangement,” said Schaefer.
Tenants who had been given a notice to move due to defaulting on their rent should be reported to the credit bureaux. Schaefer said landlords are obliged to let them stay on at least until the end of the lockdown period.
“However, if they again don’t pay rent, it is important that the landlord or rental agent keep reporting this to the credit bureaux and continuing to follow the correct legal procedures so that the eviction process can begin promptly after the State of Disaster is lifted,” concluded Schaefer.