Rental Law Q&A

In response to our article Fin24 Money Clinic article that was run on 17 June 2020 – Am I liable to pay rent for a flat I’m not yet occupying? Click here to read more.

Reader question:

I have a problem and need information according to rental law. I signed a lease to move in on the 1st of April, the keys of the flat was given to me on the 26 of March after 17h00. Because of lockdown regulations I was prohibited to move but my rent was paid in full.

Then I was suppose to move on the 1st of May, that didn’t happen because of the same regulations. But the Landlord wanted me to pay the rent for the flat that am not occupying even though I have the keys. I would like to know if I would lose my April rent and owe my landlord for not paying for May, what must I do as I could not pay because I am on lockdown not earning anything. I will move in at end of this month.
The second question is for the flat I am now, have been in for 12years, my deposit should be given back with interest according to the lease, because I couldn’t pay rental, am I going to lose my two months deposit? What about the interest?

Please advise.

Hadar Inc Response

Dear Reader

As a starting point, it is a sign of good faith that you paid for rental despite being unable to take occupation of the premises which you let. That being said, it is not an admission that the rental was due and, in my view, you have correctly requested that the rental charges for such period be credited.

The practical recourse that I suggest is that you demand, yet again, in writing, that the rental paid for April 2020 be apportioned towards the rental for May 2020 and that the rent charged for April be credited on the account due to the impossibility of taking occupation on the commencement date of the lease agreement. This will confirm your position in the event that the landlord attempts to place you in breach if you request your payment to be allocated towards the May 2020 rental charges. Any attempt by the landlord to place you in breach will, in my view, be unfounded and you will rely on your written communication as a defence.

Should the landlord not be willing to accept this, one of your potential but more drastic and costly remedies is to approach the Court for a declaratory to confirm that it was impossible for you to take occupation in April and that the landlord be ordered to credit your account accordingly. However, this is not practical as it is a costly and somewhat time consuming exercise.

Your approach to the Rental Housing Tribunal is the best practical, cost effective, solution and so soon as the Tribunal is operating, it will deal with the matter and make a ruling which will be binding on the parties, similar to an order of the Magistrates Court.

In fairness to the landlord, you can also suggest extending your lease for a month to cater for the month that you were unable to take occupation. Although it does not assist the landlord with not receiving any rental for April 2020, it must be noted that you were unable to take occupation at no fault of either party.

As always, I encourage the parties to work together towards an amicable resolution to the matter because I am strongly of the view that a successful landlord/tenant relationship is predicated on transparent communication, respect and fairness towards each other.