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Caught in a rental conundrum? This property attorney has the answers you need

30 March 2020 5:15 PM
Tags:
rent
tenant
lease agreement
Marlon Shevelew
Property attorney
Lockdown
Marlon Shevelew and Associates
rental agreement

Property attorney Marlon Shevelew shares legal advice for both residential and commercial tenants affected by the nationwide lockdown.

Shevelew says it's important to communicate with your landlord if your ability to pay rent has been impacted by the Covid-19 lockdown.

If you were due to move to new premises at the end of the month, Shevelew says you must pay your current landlord instead of the new landlord.

This stance differs somewhat from the advice given by attorney Marina Constas earlier on CapeTalk.

RELATED: Moving house? What 21-day lockdown means for renters and homeowners

Shevelew says South African case law makes provisions for unforeseen events out of the reasonable control of both the tenant and the landlord.

This, Shevelew explains, is known as force majeure.

In this instance, the coronavirus lockdown qualifies as a force majeure.

Shevelew says these are the implications of force majuere, when applied to current lease agreements:

  • 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)
  • A residential tenant who was due to move into a new property must pay the current property being occupied
  • Commercial lease agreements will have a force majuere clause outlining the rules of engagement

He encourages landlords to compassionately consider rental deferment, without using the tenant's rental deposit, in cases where a payment cannot be honoured this month.

The [number of] queries that have been coming in from rental agents, landlords and tenants has been unbelievable.

Marlon Shevelew, Property attorney - Marlon Shevelew and Associates

Force majeure talks of a superior power or force which can't be resisted or controlled.

Marlon Shevelew, Property attorney - Marlon Shevelew and Associates

The National Disaster Regulations is clearly regulation that has a direct impact on people's freedom of movement.

Marlon Shevelew, Property attorney - Marlon Shevelew and Associates

The lockdown is force majeure... Eviction orders are suspended.

Marlon Shevelew, Property attorney - Marlon Shevelew and Associates

Tenants can't be sued, because they can't issue the legal process at the moment. And they can't be evicted because they can't do evictions...

Marlon Shevelew, Property attorney - Marlon Shevelew and Associates

They [tenants] are obliged to pay rent, they just can't be thrown out or sued for money owing.

Marlon Shevelew, Property attorney - Marlon Shevelew and Associates

Commercial tenants have stronger grounds [than residential tenants] for a remission of rental.

Marlon Shevelew, Property attorney - Marlon Shevelew and Associates

Listen to the legal advice on Lunch with Pippa Hudson:


30 March 2020 5:15 PM
Tags:
rent
tenant
lease agreement
Marlon Shevelew
Property attorney
Lockdown
Marlon Shevelew and Associates
rental agreement

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