Dear Rental Agent
Compliments of the season. May 2017 be a bumper rental year for you! Improve your knowledge and therefore improve your business!
Breach Clauses & Material Breaches
Your lease agreements all contain breach clauses warning a tenant that the lease can be cancelled if there is a breach (failure) of the lease agreement. Generally between 7 – 10 days is given to remedy the breach failing which the landlord will either penalise a tenant or cancel the lease.
However: The Consumer Protection Act Section 14 states that on fixed-term agreements a tenant (consumer) may cancel the agreement on expiry of the agreement or at any other time by giving 20 business days notice in writing. Furthermore a landlord (supplier) may only cancel the fixed term agreement by giving 20 business days notice in writing to the tenant if there is a material breach and unless the tenant has rectified that breach within the 20 business days.
What exactly is a material breach?
It is a breach that threatens the terms of a contract that was originally agreed upon and signed by both parties. If a tenant does not pay rent on time this is a material breach and can result cancellation of the agreement. Breaches are generally non payment of rent and/or services, disturbance, illegal parking, damage or lack of maintenance to the property. Legally the period of time as stated in the lease is the only period that needs be given for a tenant to rectify a breach and this must be followed exactly.
Remember with a fixed term lease the breach period is 20 business days which must be adhered to. My opinion is initially to give 7 days to rectify, and if necessary another 13 days thereafter to add up to the period of time stipulated.
Those leases that state a tenant will immediately be ejected from a property if there is a breach of the lease are illegal. The law expects that a reasonable period of time must be granted to a tenant. Understand the terms of your lease and immediately notify the tenant if there is a breach. This is where many rental agents fail!
Know your lease agreement and become aware when there is a breach. A breach is anything legal that has been agreed upon when a lease was signed. Anything that is unreasonable or unfair will not be considered in a court or tribunal even if it is stated in your lease. Examples are exorbitant rental increases or exorbitant fines for late payment. If rental agents or landlords have been able to illegally evict or overcharge tenants in the past, it does not mean that this is permitted. By regularly keeping a careful check on whether the tenant is following the conditions of lease fewer problems should be experienced as tenants will become fully aware of what is expected.
An additional clause stating that if a tenant pays late on three occasions, cancellation of the lease agreement will follow is fair as long as it was in the lease initially and was explained to the tenant upon signing.
Problems with garden and pool maintenance are being experienced. Your lease should clearly state whose responsibility it is with regard to the maintenance of a garden.. If it is the tenant a gardens should be reasonably maintained with buckets or cans of water. In the case of elderly or handicapped tenants dispensation from the City Council can be obtained.
If the responsibility falls on the landlord, arrangements should be made with the relevant garden or pool service to follow whatever is required. If it becomes impossible for the landlord to provide this service because the service is beyond his control - maybe he is residing in another country – the terms of the lease agreement will become renegotiated.
As pool covers are becoming a necessity I understand that the PH of the water in a pool is altered by becoming warmer than usual. If this necessitates extra chemicals the cost should be shared on a 50-50 basis or by agreement.
Rental agents - your own experienced skills and knowledge are important at these times. Tenants and landlords will take on your matter-of-fact attitude that these are problems which apply to everyone and which can be overcome with the co operation of all parties.
Best of luck!