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residential house lease cancel

One has to draw a clear distinction between lease agreements for residential properties and those that are for commercial properties

We received the following in an email this last week.

“I signed a 2-year lease agreement with my landlord on the 27th February 2018 and the lease agreement came into effect on the 1st March this year. I simply cannot afford the rent and I wrote to my landlord on the 29th June cancelling the lease and requesting repayment of my security deposit of R 28000.00. He has refused to refund me. What can I do?” 

We get a lot of queries just like this one.

You cannot just cancel a lease agreement. It is a contract and must be dealt with correctly and legally if you want to cancel it.

One has to draw a clear distinction between lease agreements for residential properties and those that are for commercial properties.

Residential property termination of lease agreements is normally easier to deal with than those that relate to commercial properties.

The lease agreement and its specific terms and conditions are the foundation document for the agreement between yourself and the landlord.

In terms of the common law of contract, both the landlord and the tenant are bound by the terms of the lease agreement.

Legislation however also plays an important role in this area of the law and both the Rental Housing Act and the Consumer Protection Act may very well be applicable to any particular set of facts.

Each case must be looked at on its own facts and its own merits.

It is for this reason that you need an expert in your corner who can advise you and assist you in dealing with the matter properly and professionally.

It will be worth both the money spent and the time saved in the long run.

Prior to the Consumer Protection Act, No 68 0f 2008 (CPA) which came into effect at midnight on the 31st March 2011; the law of contract and the common law covered the issue of when and how a tenant went about cancelling a lease agreement.

Prior to April 2011; both parties were pretty much bound by the terms of the lease agreement and this was very much weighted in favour of landlords as opposed to their tenants.

That has all now changed since the commencement date of the CPA, and tenants and landlords need to be aware of the statutory provisions of the Act; which now cover the early termination and cancellation of lease agreements.

In terms of the CPA, some tenants have the RIGHT to cancel their leases, as long as they do so while fulfilling ALL the legal cancellation criteria or requirements.

The provisions of the CPA in respect of the early termination of lease agreements applies mainly to natural persons; namely ordinary consumers; and does not normally apply to juristic persons, trusts, body corporates, companies and close corporations.

In commercial leases where there are juristic persons involved the CPA can normally not be used and one has to revert to your rights in terms of the common law.

All tenants are advised by us to use a legal professional to attend to this on their behalf. Doing so on your own and not knowing the law applicable in your particular lease and your peculiar facts and circumstances can lead to complications and a very expensive outcome.

A formal legal process must always be followed to make an early termination or cancellation of a lease agreement legal and effective.

At The Legal Advice Office, we normally follow a legal process which involves alternative dispute resolution processes to resolve issued between landlords and tenants and have a high success rate with this intervention and mediation process.

If you want or need proper, professional legal assistance please visit our website or send us an email; the details of which are given below.

About our author:

Hugh Pollard (Legal Consultant), has a BA LLB and 42 years’ experience in the legal field. 22 years as a practising attorney and conveyancer; and 20 years as a Legal Consultant.

082-0932304 (Hugh’s Cell Number)

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Legal Advice Office

South Africa

Kandelaar Street, Vermont, Hermanus
Phone: +27 (0) 82 093 2304