A Fin24 reader was unable to take occupation from 1 April to 7 May 2020 due to lockdown, but paid up their rent. Now, they want to know if they have any recourse to have the funds credited.

The reader writes: 

I sent through a request to my estate agent to consider the legal application of force majeure and contractual obligations, as I had a lease agreement set to commence on 1 April. 

It is worth noting that I am completely up to date on my rental payments from this date and have not withheld any rent for fear of being in breach of contract. 

There have been many opinions posted to this effect, all stating that landlords could not charge rental for leases set to commence 1 April, when tenants were unable to take occupation. 

The estate agency refused to recognise that I had grounds to ask for remission of rental, and I hired a lawyer to write to them with a legal opinion, which they also chose to disregard. 

They eventually told me that they would not be willing to communicate further in this regard and would not respond to my lawyer or myself. 

I have since sent an application for remittance of rental through to the Western Cape Rental Tribunal, which is currently not operating due to safety concerns related to Covid-19. 

I would like to know what recourse a tenant has in this regard, if your estate agent or landlord refuses to acknowledge your right as a tenant to not pay rent from 1 April 2020 to 7 May 2020? 

I can imagine that there are many tenants who just do not have the means or energy to hire a lawyer, and as someone who has the means, even I was unable to get my rental refunded or reallocated. 

I suspect that my estate agent is applying this logic to ALL tenants set to commence agreements on 1 April and not just myself. 

It is also quite damaging to the relationship with one's estate agent, and I am afraid of the treatment and service I may get once I do take occupation of the property. What can I do? Do I have any recourse? 

Liad Hadar, Director at Hadar Incorporated Attorneys & Conveyancers responds: 

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 as 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. 

Compiled by Allison Jeftha. 

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