LANDLORDS BE SURE TO HAVE THE CLAUSE DESCRIBED BELOW CONTAINED IN YOUR LEASE AGREEMENT

The SCA today dismissed an appeal by a lessee against an order of eviction granted by the High Court, after the lessee had fallen into arrears with the rental payments. The lessee admitted that it had not paid the rental in terms of the lease agreement, but denied that any was due on the basis that its obligation to make payment was suspended as a result of the failure by the lessor to afford to the lessee, vacant occupation of the entire leased premises. The position was that the Lessor had retained occupation of a storeroom. The appellant was of the view that it did not have vacant occupation of the premises.

The lease agreement obliged the lessee to make payment of the rental ‘on or before the first day of each month’ and ‘without any deductions or set off whatsoever’.

It was held that the rent had to be paid in advance by the lessee and was accordingly not reciprocal to the obligation of the lessor, to provide beneficial occupation of the entire premises.

The terms of the lease therefore precluded suspension of the payment of rental by the lessee, as a result of the failure by the lessor to afford to the lessee beneficial use of the entire leased premises.

The route to be taken by the Lessee has been set out in many cases and in terms of that line of authority, a lessee who takes occupation of premises which are deficient in any respect is obliged, while it remains in occupation, to pay the full rental stipulated in terms of the lease. Its remedy is to claim compensation by way of an abatement of rental and/or damages. A lessee who, having taken occupation, fails to pay the full rental is exposed to the cancellation of the lease for non-payment.’

As a result, the cancellation of the lease by the lessor was justified as the lessee was in arrears with the rental payments and the ejectment was justified.