Page 19 - SilverLakes_Issue 5_2022

PROPERTY NEWS

CAN A TENANT WITHHOLD

RENTAL PAYMENT?

his is the most misunderstood and
contentious subject when it comes
Tto rental properties.

There are many reasons that tenants feel
justified to default on rental payments.
The main reason is that they feel the
landlord is not maintaining the property
to the agreed standard.

It is important to note that the tenant is
not entitled to withhold a portion of the
rental amount and unilaterally decide
what amount to deduct. The court has to
grant an order to that effect first.

There are two reasons for this. Firstly,
there is a binding contractual obligation to
pay the agreed rent. Failure to do so would How do you decide if a rental No clause may be added to the lease
cause a breach of the lease agreement. contract is fair? agreement which will allow for the tenant
And secondly, the courts do not simply The Act makes it clear that any provision to withhold rent.
allow tenants to decide unilaterally that in a contract will be presumed to be unfair
they are suffering damages – therefore, when it excludes or restricts the legal Conclusion
they may not decide unilaterally what rights or remedies of the tenant against The effect of the presumption is quite
amount to attribute to these damages. the landlord in the event of total or partial simply that where there is any dispute
breach by the landlord of any of the about the clause, the onus will be on
Notes on the relevant sections of obligations provided for in the agreement. the landlord to show why it is not unjust,
the Consumer Protection Act having regard to the circumstances of the
The CPA clearly states the following: The Act also makes it very clear that the matter.
• That a landlord must not enter into a tenant may only apply a set-off where he
contract with a tenant that is unfair. has a legal right or remedy to do so; in Even where a lease agreement does not
• That a term of any contract will other words, a court order. specifically prohibit the withholding of
be presumed to be unfair when it any portion of the rental, the tenant
excludes or restricts the legal rights What does the CPA say about holding cannot deduct an amount from his or her
or remedies of the consumer (tenant) back rent? rental without first having taken steps
against the landlord, in the event of The CPA does not provide any legal right through the courts to liquidate his or her
total or partial breach by the landlord to set off any amounts from the rental “damages” claim or set-off.
of any of the obligations provided for where the landlord fails to maintain the
in the agreement, including the right property. At most, the CPA allows a tenant Contact us for any advice.
of the tenant to set off a debt owed to request the landlord to remedy any
to the landlord against any claim defect in the property, or alternatively, to
which the tenant may have against refund a reasonable portion of the price
the landlord. paid (reduction in rent).
• The landlord is expected to and must
maintain the property to the same The reference to the refunding of money, as
standard throughout the duration of opposed to a unilateral set-off, is important
the lease agreement, fair wear and as it is in line with the common law that Call: 083 551 7122
tear excluded. one cannot simply set off an illiquid debt. Email: leroux.marlie100@gmail.com

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