2011/04/18 09:47:50 PM
pierre
Posts: 1
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dear all,
I just want to make 100% sure about the ruling on "notice period" in a residential lease agreement. The "20 work day" period for a tenant to give notice has not materialized? What is the actual ruling?
I listened to Lynette Francis' program this morning on Radio RSG between 8 and 9 where a representative of either the Consumers Forum or the Credit Buro (can't remember unfortunately) mentioned that the CPA is not at all applicable on the property rental industry. Is this true? I memorised a tel. number (hope I still have it correct) from this program which I will also try and call tomorrow = 0861 662837.
kind regards
pierre
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2011/04/20 09:23:40 AM
Michelle
Posts: 152
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Hi Pierre, I did not hear the interview but the telephone number you quote below is the Credit Ombudsman. In terms of the National Credit Act (NCA), lease of immovable property is not a credit agreement and therefore the NCA has limited applicability when regulating lease agreements. With regards to the Consumer Protection Act (CPA) and the regulations: the CPA and regulations came into effect on the 01/04/2011 - this includes the consumer's right to give 20 business days notice to cancel a fixed term agreement. Although the consumer has the right cancel a fixed term agreement, the supplier may charge a reasonable penalty. The question as to whether a tenant has this right to cancel on 20 business days, is one which has been hotly debated - but to date there have been no exemptions granted.
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2011/04/26 03:16:05 PM
Marlon Shevelew
Posts: 78
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100 percent correct Michelle!!!
Michelle wrote:
Hi Pierre, I did not hear the interview but the telephone number you quote below is the Credit Ombudsman. In terms of the National Credit Act (NCA), lease of immovable property is not a credit agreement and therefore the NCA has limited applicability when regulating lease agreements. With regards to the Consumer Protection Act (CPA) and the regulations: the CPA and regulations came into effect on the 01/04/2011 - this includes the consumer's right to give 20 business days notice to cancel a fixed term agreement. Although the consumer has the right cancel a fixed term agreement, the supplier may charge a reasonable penalty. The question as to whether a tenant has this right to cancel on 20 business days, is one which has been hotly debated - but to date there have been no exemptions granted.
--
Marlon Shevelew
Specialist Landlord / Tenant law Attorney / Consumer Protection Act expert
and National Legal Advisor to TPN
www.marlonshevelew.co.za
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2011/04/27 05:39:54 PM
Hope
Posts: 6
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Marlon Shevelew wrote:
100 percent correct Michelle!!! Michelle wrote: Hi Pierre, I did not hear the interview but the telephone number you quote below is the Credit Ombudsman. In terms of the National Credit Act (NCA), lease of immovable property is not a credit agreement and therefore the NCA has limited applicability when regulating lease agreements. With regards to the Consumer Protection Act (CPA) and the regulations: the CPA and regulations came into effect on the 01/04/2011 - this includes the consumer's right to give 20 business days notice to cancel a fixed term agreement. Although the consumer has the right cancel a fixed term agreement, the supplier may charge a reasonable penalty. The question as to whether a tenant has this right to cancel on 20 business days, is one which has been hotly debated - but to date there have been no exemptions granted. |
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2011/04/27 05:45:53 PM
Hope
Posts: 6
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Hi
Please help, we had a tenant for a year now, his contract had to be renewed on 1 March, after phoning him, he said that he wanted to renew the lease, we mailed him the lease on the 2nd of February to sign which he never did. After not receiving rent for April we contacted him, he said that he was moving out at the end of April and that we should use the deposit as rent for April, he also says that he had legal council and that we can do nothing as he has no contract with us. It unfortunately also turned out that the lease for the previous period was not signed by him, but he has stayed in the property for more than a year, paying each month. Our lease states that both parties should give one month notice.
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2011/04/28 09:19:38 AM
Michelle
Posts: 152
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Hi Hope, there seem to be 2 issues, firstly the non-payment of April rent, secondly the notice period to cancel the lease. In terms of the non-payment of April rent - the tenant cannot offset his deposit against the April rent. The deposit is held against any damages. I suggest sending the tenant a TPN letter of demand immediately to demand payment. In terms of the notice period, should the tenant not sign the renewal lease - then the lease continues with the same terms and conditions as the original lease. The Rental Housing Tribunal seem to have amended their interpretation of the Rental Housing Act (in line with the Consumer Protection Act) to mean that the lease continues on a month-to-month basis on the same terms and conditions as the original lease.
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2011/05/05 09:48:43 AM
spikkelchicken
Posts: 1
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Hello
I am a tenant. We moved to the Cape from Limpopo and moved intoa cute little house at the end of October 2010. When we moved in the owners were busy painting the outside of the house and we had to givee access tot he conntractors to varnish the window frames and doors.
a month later we had a break in at the house. When we moved in we noticed the rather insuffucient burgar bards but the assured us the house had never been broken into, and taht the neeighbours also had never suffered any burglaries, so we accepted the burglar bars as is. THe owner did mention taht should we need any extra security doors etc, we shold just mention it and she would gladly accomodate us.
WE requested an alarm to be put in and they agreed,a lthough it was a very basic system, with only magnets on two doors. We requested the window which was broken into (the burglars bars were completely remved!) to be made seciure again but the refused on the pemise tah they gave us the alarm and that we'd stated we preferred the alarm (we never did). We accepted their decision though.
A month later the oven stopped working and I informed the landlord. She sms'd me and said thata ccording t the contract it was our responsibility to maintain the stove. I was rather taken aback, we'd only beeninthe house three months by that time and I had no idea in what condition of reair the oven was when we moved in, had no record of how the previous tenant maintained it, nor any user manuals to try and diagnose the fault by. We got a quote for th repair and it amounted to R600. we repaired the oven and it worked for a full two days then broke again. I was livid and refused to pay for the repair anymore. THe wners came out and brought an electrician (five weeks after the oven had broken) and said taht they were going out of the country and that they would attend to the repair of the oven when they returned three weeks later (the electrician said it was a loose connection on the wirtes and as he had no tools with him he could not repair it immediately). I spoke to the owner aout several otehr issues in the house, like a tap that was broken etc and she flippantly told me that she was rather going to sell thou house if it was going to cause her so many problems.
She then mentioned that they would release us form our 12 month contract 9which would only expire in OCtober 2011) if we gave them two months notice.
I said that we might rather want to do this, since I ofund it acceptable to live in a house where they expected me to maintain the electical fixtures in the house without me knowing the things were correctly installed or having maintenaince records and where I no longer felt safe.
In the last week of Pril I tried to contact thhe owner twice via email. I could not phine her since she was still abroad. i mentioned in my email that we would like to give notice as of 1 May 2011 but as I was gnot getting any repply form her I did not just want to send the letter to her via email. On sunday 1 May i phoned her daughter, who did not answer. I had sms'd her earlier as well and she never replied.
When she eventually called back, i was informed that the owner was returning later the same day. the owner also called later that night as I said I had not paid over the rent yet and was hoping to hear from them before I did, to discuss the repair of the oven. i had told her in a voicemail messgae that I wanted to discuss our notice too. She said she'd come to see me on Wednesday (yesterday) and that we could discuss everythhing then.
Thus I left it. Yesterday they came again to fix the oven and couldnt't as the problem was much bigger than just the thermostat I had replaced or the loose connection diagonsed on the previous visit. the whole element system seemed to be dead. I gva her a copy if our letter of notice of terminationa ns=d she said she was not willing to accept it as itwas already the fourth.
Since these people are now messing around with me and being unfair - woudl I be able to fall back on the CPA and give them 20 workdays notice?
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2011/05/05 11:43:09 AM
Michelle
Posts: 152
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Hi Spikkelchicken, the 20 business days notice to cancel an a fixed term agreement as per the Consumer Protection Act only applies to agreements signed after the 1st April 2011. It does sound like you have some frustrations with the property maintenance, and I do know some landlords like to make provision in the lease agreement that the tenant is responsible for all maintenance issues. However, you might want to contract the Limpoopo Rental Housing Tribunal for assistance with resolving the maintenance issue: (015) 294 2000 or (015) 294 2241.
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2011/05/06 02:28:43 PM
Elgee
Posts: 14
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I have 2 questions re the CPA:
1) Can the 20 business days notice be given at any time during a month, or must it in actual fact be a calendar month?
2) What would be considered "a reasonable penalty"? I've read that one could charge "possibly no more than 10% of the amounts still owed".
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2011/05/07 08:45:47 AM
Michelle
Posts: 152
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Hi Elgee, a tenant who enters into a lease agreement after the 1st April 2011 has the right to give 20 business days notice to cancel the lease - this notice can be given at any time during the month. This does not apply to a tenant who is a juristic person (company, close corporation, trust)
The draft CPA regulations limited the penalty that the landlord could charge the tenant for early cancellation to 10%, but the final regulations state the penalty should be reasonable taking into account the following:
The amount the consumer is still liable for up to date of cancellation
The value of transaction up to cancellation
The value of goods which will remain in possession of the consumer after cancellation
The value of the goods returned to supplier
The duration of initial agreement
The losses suffered or benefits accrued to the consumer
The nature of goods / service
The length of notice of cancellation provided by the consumer
The reasonable potential for the service provider, acting diligently, to find an alternative consumer
The general practice of the relevant industry
Notwithstanding the above – the supplier may not charge a charge which would have the effect of negating the consumer’s right to cancel a fixed term agreement
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2011/05/10 11:59:35 AM
Elgee
Posts: 14
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Gah ... this is making my head explode. Would it be acceptable to put something like the following in a lease agreement:
In the event of the Lessee cancelling this Agreement before the Termination Date, as set out in Clause 1, the Lessee shall be liable to an Administration Fee of R1000.00 (One Thousand Rand) payable to Select Letting, and 10% of the remaining rental to the Lessor.
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2011/05/12 06:14:50 AM
Michelle
Posts: 152
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Hi Taxboffin,
1. The tenant's right to give 20 business days notice as provided in the Consumer Protection Act only applies to leases signed after the 1st April 2011.
2. From what I understand you have a 3 year lease agreement but your lease agreement does provide for a 3 month cancellation period and your landlord has initiated the cancellation by giving you 3 months notice. You would be in default if you shortened the cancellation period.
3. The Rental Housing Act regulates the holding and refunding of the tenant's deposit. The tenant and landlord must perform a joint incoming and outgoing inspection, only if both joint inspections are performed can the landlord determine the damages caused by the tenant and apply the deposit to the reasonable costs of repairs. The Rental Housing Tribunal exists to mediate / make findings in the case of all tenant / landlord disputes (including the non-refunding of a tenant's deposit).
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2011/05/18 12:03:15 PM
Marc Lunau
Posts: 175
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Michelle wrote:
In terms of the notice period, should the tenant not sign the renewal lease - then the lease continues with the same terms and conditions as the original lease. The Rental Housing Tribunal seem to have amended their interpretation of the Rental Housing Act (in line with the Consumer Protection Act) to mean that the lease continues on a month-to-month basis on the same terms and conditions as the original lease.
Does that really apply although no lease was ever signed? I doubt it.
I would say to Hope, let him move out and hope he actually will. He could stay on and give you much more hassles like not paying rent once his deposit is depleted. Find a new tenant and get a signed lease this time before handing over any keys.
--
Investor and Property Manager with value add solutions
www.houses4rent.co.za
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2011/10/31 03:57:29 PM
noordwester
Posts: 2
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Good day
Please assist me regarding notice period on a property lease contract. We signed a contract with a 3 month written notice period. Landlord called me first week of September to give me notice to vacate by the end of October as he was moving back. I then had to move by the 14th October as he was going for an operation and wanted to recuperate at home. What remedies do I have beacause the notice was not in writing and six weeks short?
Thank you
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2011/11/01 06:08:33 AM
Michelle
Posts: 152
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Dear Noordwester, it sounds like the landlord gave you short notice and you could have refused to vacate until the full notice period was up. I assume you have moved out already. I also assume you only paid pro-rata rent for October and your landlord performed the outgoing inspection with you and has refunded your deposit?
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2011/11/01 09:34:42 AM
noordwester
Posts: 2
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Hi Michelle
Thank you for your prompt response! I did indeed move out because he could wait no longer.There was a quick inspection after I have already moved in, but nothing was put on paper. I was still moving out when he started moving back. I only paid pro-rata for October. So no outgoing inspection on paper as well. He now has sent me an invoice for alleged damages, one of which for wall tiles that came loose due to age and poor workmanship.
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2012/01/19 09:34:46 AM
tbarnard
Posts: 3
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Hi,
I need some advice. Our lease is coming to an end at the end of this month. I have been telling the owner for a month that we arent sure whether we can renew as we might be relocating. We got confirmation yesterday that we were going to be relocating so I let the landlord know that we wouldnt be renewing the lease. The landlord also hasnt been pushing the renewal as the house is currently on the market. The owner has now come back to us to say that we have to pay the full rent for February aswell, as we havent given a calendar months notice (our lease was signed in 2010). I told her that nowhere in our lease agreement does it say that we need to give any notice at the end of the lease period, to which she replied that it is like an unwritten rule. Please can you let me know if this is the case? I was under the assumption that we have to go by what is in the lease agreement?
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2012/01/19 03:52:53 PM
Michelle
Posts: 152
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The lease agreement is the legal contract between the landlord and tenant and sets out each party’s rights and duties. Some lease agreements are fixed term with a start date and an end date. But some lease agreements are fixed term and then require a calendar months notice by the tenant the month before the termination date failing which the lease continues on a month-to-month basis. Have a read through your lease to determine if the lease mentions the tenant’s responsibility to give a calendar months notice.
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2012/01/19 04:22:51 PM
tbarnard
Posts: 3
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Thanks, Michelle. I have had a good read through the lease - all it says is that once our fixed term contract is up we have the option to renew our lease for another 6 months (which we did and are now at the end of this 6 month extension), and if this is what we want to do, we have to give the owner one calendar months notice of our intention to renew. There is nothing about a notice period once the fixed term contract is up.
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2012/01/19 04:26:17 PM
Michelle
Posts: 152
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Sounds like the fixed term is up and no further notice is required to terminate. There is no "un-written" rule that you are oblidged to give notice.
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