Under the Consumer Protection Act (CPA) tenants can now give landlords 20 days’ notice if they want to vacate the premises before their leases have expired – but this clause doesn't mean an easy escape. Tenants need to understand that while they have every right to move, the landlord has every right to recoup “reasonable” costs that may be incurred while looking for a new tenant.
Loss of rental income, commissions paid to agents, as well as the cost of advertising the property, are just some of the costs that can be levied against a tenant in these circumstances. That said, landlords cannot charge tenants exorbitant amounts or thumb-suck figures that they deem reasonable. There have been cases where landlords have attempted to charge their tenants six months’ rent; clearly these cases are reason to approach a specialist property attorney for advice.
One particularly nasty reaction by landlords to the early cancellation of a lease is trying to retain the entire deposit amount regardless of whether or not a new tenant is found or the entire is incurred in costs. This is illegal and tenants have every right to approach the Rental Housing Tribunal to lay a complaint.
Landlords cannot penalise tenants at will just because they have cancelled a lease. While the CPA doesn't specify what a reasonable amount would be (this would be just about impossible) landlords need to use common sense when deducting money from the departing tenant.
Communication is key
Although a tenant may not necessarily want to move, sometimes there is no alternative and cancelling a lease that has not yet run its course is the only option. As always, the best way to avoid disputes is to discuss the situation with the persons concerned. Most landlords have bonds on their properties and these payments have to be met. However, given that most areas in South Africa are experiencing a shortage of rental properties, finding a new tenant should not be that difficult.
It is not a tenant’s responsibility to find someone to take over the lease. But, landlords cannot just turn away prospective tenants and attempt to make the departing tenants pay the costs. Should the departing tenant believe that the landlord is not acting in good faith he has every right to approach the Rental Housing Tribunal.
Landlords, pretty obviously, also can't continue charging the departing tenant once a new tenant has been found.
Damages vs CPA costs
Tenants however do need to remember that the costs incurred with cancelling a lease are completely separate from those associated with damage to a property. Landlords have every right to charge tenants for repairs for which the tenants are liable. The “reasonable cancellation costs” would be separate charges to the damages amounts, which are generally deducted off deposits. For advice on refunding deposits and damage to property, visit the Private Property advice centre.
For further information on the effects of the CPA on rental agreements, contact the Rental Housing Tribunal on 011 355 4000 or google the term to find the provincial office closest to you.
