3 Rental Issues - Continuous Late Payment By Tenant + Early Lease Cancellation By Tenant
Rental law and the rights of landlords and tenants can be a minefield. Rental law expert Marlon Shevelew shares advice on 3 rental issues which has not always clear-cut answers - to solve the potential conflict between the parties. their rental payments?
1. What can a landlord or rental agent do about a tenant that is continually 3-4 weeks late with their monthly rental payments? a landlord/rental agent do if a tenant is continually 3-4 weeks late every month with their rental payments?
If a tenant is late with his/her payment, and assuming we are dealing with a natural person, then a formal letter of demand is required. The demand can clearly state that in the absence of payment within 7 (seven) calendar days, legal action can be commenced for the amounts owing plus costs. It bears mentioning that in any month, if the payment is still not forthcoming within 20 business days from date of the demand, the lease may be cancelled and the occupant provided a period of time to vacate.
Note: the notice should also make express provision for the tenant to remedy his default within the stated 20 business days in order for the right to cancel the lease to accrue to the landlord.
2. What happens if a tenant signs a 12 month lease and leaves after four months but the rental agent took commission on 12 months upfront? Does he/she have to refund the landlord for the balance of the lease?
A procurement of a tenant is a specific mandate that a landlord provides an agent and if the agent has done its due diligence when placing the tenant, there would not be an opportunity for the landlord to claim back the commission earned for the balance of the lease. There is no law that provides for a claw back of commission in such an instance, especially if the actions of the tenant are no fault of the agent.
Note: the landlord may be entitled to levy a portion of the lost commission to tenant in the form of a cancellation penalty pursuant to section 14(3) of the CPA - this will have to be a pro-rated amount.
3. What happens if a property is sold after the tenant moved in and paid a deposit? In this case, the tenant didn't get his deposit back and the new owner is also demanding a deposit which seems a bit unfair.
In short, the tenant is not liable to pay any further deposit. This deposit should be paid over by the previous landlord to the new landlord whom has stepped in his predecessor's shoes.
Note: the principle of huur gaat voor koop would apply so as to ensure the validity and enforceability of the lease going forward. The tenant's obligations thus remain the same, as do his / her rights. In terms of the RHA the landlord is required to invest the deposit in an interest bearing account, and upon expiry the tenant is entitled to return of same (along with accrued interest), less any amounts deducted for damage to the premises and other amounts that may be owing in terms of the lease. Thus, it follows that in the event of the property being sold the previous landlord is required to pay the deposit to the new landlord, as the new landlord will be obliged to refund the tenant upon expiry of the agreement.