After her family suffered a terrible ordeal during a break-in, a reader wants to know what her options are of moving out, even though they have another year to run on their lease.
Her son was held by the robbers and has suffered traumatic times as a result. School councillors have suggested that they move from the dwelling for his emotional well-being.
The landlord‘s agent has advised that their options are to wait out the balance of the lease period or to stay until they have secured new tenants.
The reader says the agents have not yet made any effort to advertise the dwelling.
See the reader’s question here.
Security and crime-related issues are becoming a pressing influence on leases.
This involves instances where the tenant wishes to vacate the premises early due to a crime, or where a tenant insists that the landlord beefs up security.
The problem in many instances is that the lease does not address matters related to security.
Improvements to the dwelling may be permitted but are often to be installed at the tenant’s expense, with no compensation by the landlord.
While certain improvements may be removed at the expiration of the lease, it may not be cost-effective to make good any damage incurred during the removal process.
The reader’s situation is tricky but, sadly, not unique.
It often happens that a tenant may wish to vacate a dwelling prior to termination of a lease and, in many instances, for reasons that are completely understandable.
The reader should begin by examining the lease agreement for any remedy relating to cancellation of the lease prior to the expiration date.
Should this not be an option and the landlord refuses to entertain an amicable solution as to an agreed termination date, the reader could turn to the Consumer Protection Act.
If the act is applicable, section 14 permits the consumer (tenant) to cancel a lease agreement by giving the supplier (landlord) 20 business days’ notice in writing or other recorded manner.
These are subject to certain sub-sections, which state that the tenant remains liable to the landlord for amounts due at the time of cancellation.
Furthermore, the landlord may impose a reasonable cancellation penalty.
A regulation to the act provides some guidance as to what is to be considered when a landlord calculates such a penalty.
These include the value of the transaction up to cancellation, the duration of the consumer agreement as initially agreed and the general practice of the industry.
The landlord is obliged to seek an alternative tenant, which is a principle contained both in common law and the act.
He is thus obliged to endeavour to mitigate his losses and, assuming our reader gives notice of termination in terms of the act, the lack of effort of either the landlord or agent in seeking an alternative tenant would be unacceptable.
The regulations offer further relief or guidance in stating that the landlord cannot stipulate a charge which would have the effect of negating the consumer’s right to cancel a fixed-term consumer agreement.
In the current instance, and with the pressing circumstances, a fair cancellation penalty may well be quite acceptable to the reader and she should consider giving proper notice of termination under the act.
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