MONEY CLINIC | Am I liable to pay rent for a flat I am not yet occupying?

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A Fin24 reader unable to move into his new rental property due to lockdown restrictions seeks the advice of an expert.

He writes:

I have a problem and need information according to rental law.

I signed a lease to move in on the 1st of April, the keys to the flat was given to me on the 26 of March after 17:00. Because of lockdown regulations I was prohibited to move but my rent was paid in full. I was then supposed to move on the 1st of May, that didn't happen because of the same regulations. But the Landlord wanted me to pay the rent for the flat that am not occupying even though I have the keys.

I would like to know if I would lose my April rent and owe my landlord for not paying for May, what must I do as I could not pay because I am on lockdown not earning anything. I will move in at end of this month.

The second question is for the flat I am in now and have been in for 12 years. My deposit should be given back with interest according to the lease, because I couldn't pay rental, am I going to lose my two months deposit? What about the interest? Please advise.

Liad Hadar, Director at Hadar Incorporated Attorneys & Conveyancers responds: 

Dear Reader 

Due to the lockdown regulations, it was impossible for you to move to the leased premises and take occupation of the flat on the commencement date, being 1 April 2020.

This is a unique scenario, whereby neither the landlord nor tenant could actually comply with their contractual obligations. In my view, this means that you were not liable for rental for April and until the landlord could provide you with actual beneficial occupation of the flat. In essence, as a result of the lockdown regulations, the respective parties’ contractual obligations in terms of the lease agreement were temporarily suspended until you were able to take occupation. 

It is important to note that you did however become liable for rental the moment that you were lawfully entitled to take occupation of the flat. This means that from 7 May 2020, you became liable for rental, which then means that you were liable pro-rata for the month from such date. 

Practically, I would suggest that you request that the landlord apportion the rental paid for April 2020 towards the rental for May 2020, pro-rata from 7 May 2020. 

Insofar as your second question is concerned, although I have not had sight of your lease agreement, in terms of the Rental Housing Act, a deposit must be invested by the landlord in an interest-bearing account with a financial institution and the landlord must pay the tenant interest at the rate applicable to such account which may not be less than the rate applicable to a savings account with a financial institution. 

With regards to the refund of your deposit and interest accrued, on the expiration of the lease, the landlord may apply such deposit and interest towards the payment of all amounts for which the tenant is liable under your lease agreement, including the reasonable cost of repairing damage to the dwelling during the lease period and the cost of replacing lost keys.

The balance of your deposit and interest, if any, must then be refunded to you by not later than 14 days of restoration of the leased premises to the landlord.

Questions may be edited for brevity and clarity.

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