I am writing the article with mixed emotions at this time.  On one side, I am a legal representative for clients that have people renting and not paying rent and on the other side, I myself am still currently renting a property.

While my primary concern is to determine the legal position in matters like this, there are also very practical suggestions I can maybe make, because I understand and value both positions during these trying times.

We would expect landlords and tenants to have a good, working together and respectful relationship, but unfortunately this is not always the situation.

If there is a situation with respect for both sides the parties should be able to discuss terms of the agreement during a very unusual time and propose a practical solution for both as the tenant has use and enjoyment of a property which they can maybe not afford due to unforeseen financial implications, BUT the landlord on the other side is not excused from paying a bond possibly, levies, municipality services and insurance of the property.

Let’s have a look at the contractual obligations and requirements in law for a lease agreement, being it for a residential or a business property.  I trust that by taking all of this into consideration and if there is proper communication between the parties, proper solutions can be reached to protect both parties in a lease agreement.

We recently had a proper look at force majeure and if it is applicable in contractual relationships during Covid -19.  We did determine that during this time, if all necessary requirements are present, a tenant can make use of the procedures available, BUT again to not to “miss use” the law and to follow the correct procedures.

A copy of the discussion is available on request.

Always remember as referred to above, to not just use the current situation as an excuse for non-payment while you as a tenant are more than able to still fulfil your obligations.  Most rental agreements contain a clause that excludes any deduction or setoff for ANY reason whatsoever against monthly rental payments.  Therefor rental payments remain payable and the landlord is within his or her rights to proceed with a claim if rental or any other amount due and payable as agreed upon in the agreement, is not paid on time.

I mentioned business and residential tenants above.  Certain Retail (which were not certified as essential services) and commercial tenants, would not have been occupying rental property during this time of the premises.  Some were in a situation where no income could be generated.  However if the abovementioned clause regarding offset of payments are included in the agreement, the rental obligation is set and tenants still have an obligation to continue with payments in these circumstances.

Even though not in full use of the property during this time, the landlord still has his or her obligations regarding payments due and was not in a position to lease the property during this time to another party, as the premises was occupied by assets of the tenant.

Practical advice will remain even during this time to continue with payments as per your contractual obligations.

If you are unable to make payment due to these circumstances, I hope you are in good standing with your landlord due to past payments always kept up to date.  Then and only then have an open and honest discussion with your landlord for a practical solution and possibly rather just reducing the rental payment and at least also payment of the municipal services utilised.  If not this situation can snowball into a legal battle and cause unnecessary expenses for all.

Be fair, respect each other and obligations and be kind to each other by working together to overcome this.  

It is further important to mention that we must remember our actions during a time like this will definitely make an impact and how we handle a crisis, in future.  I would rather do it by working together than working against each other.

If you are in a situation where you need assistance with revising terms of an agreement for during this time you are welcome to contact us for assistance.  If you are a landlord or a manager attending to a property on behalf of the owner and you experience problems relating to non payment of rental and service amounts, contact us for advice and legal assistance to claim the amount and communicate with the tenant as we know that in in a lot of contractual relationships both parties need assistance with communication.