One of the foremost advantages of agreements/contracts is that parties thereto are at liberty to capture in such contract what they require of each other, the time frames, and the conditions under which those obligations must be fulfilled. Parties are therefore free to execute contracts basically about anything, as long as the object of such contract is not against the law and/or against public policy.
Contract negotiation affords each party an opportunity to bargain for their own interests as far as possible before concluding and signing off the contract. It is important therefore, that one concludes an agreement under informed circumstances, which we as Van Deventer & Van Deventer Attorneys are extensively experienced in.
CPA Compliant Lease Agreement
Lease agreements are no different either, tenants are in a position to study a lease agreement before signing off and accepting rented properties. Despite having lesser bargaining power, tenants may also negotiate terms of the lease agreement with the landlord before parties eventually settle on what they agree on.
Not all lease agreements will benefit from the regulation of the Consumer Protection Act 68 of 2008 (CPA), unless the landlord rents out the property in the ordinary course of business, which is one of the important requirements for the CPA to apply. In Amalgamated Banks of South Africa BPK v De Goede & ‘n Ander 1997 (94) SA 66 (A) it was held that to determine what ‘ordinary course of business’ means one had to inquire the terms and conditions which business persons use under the circumstances.
In the case of Griffiths v Janse van Rensburg NO (2015) ZASCA 158 it was held that ordinary course of business means the transaction must “not appear anomalous, unbusinesslike or surprising to the normal businessman in the circumstances.” Where a landlord rents out more than one property, lives off on property rentals alone, leases property to one tenant after the other, could all be helpful indications to determine whether the landlord is in the business of leasing property or not.
Further, the terms of the lease agreement must also have provisions that must be included so as to effect the applicability of the Consumer Protection Act, as well as some provisions from the Rental Housing Act 50 of 1999.
Under certain circumstances therefore, depending on the terms of the lease agreement and the Consumer Protection Act, an injury on a rented property may give rise to a public liability claim against the landlord’s public liability insurer by the tenant.
Van Deventer & Van Deventer Incorporated – Property Law Attorneys in Johannesburg & Cape Town
We comprehensively assist with a wide array of Property Law and related matters, whilst fully prepared to guide individuals and businesses in this sophisticated area. Kindly make contact with us for comprehensive assistance in these and other matters.
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