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The Consumer Protection Act No 68 of 2008 (CPA): Leases: Some important terms and conditions:

In our last blog we looked at the early termination of lease agreements,

In this blog we intend to renew our acquaintance with some of the provisions of the Consumer Protection Act No 68 of 2008 (CPA) dealing with leases and some of their terms and conditions in general in the CPA.

We intend therefore to refer to and discuss some of the provisions of the CPA relating to landlords, their leases and the question of whether or not certain terms and conditions in a lease are unfair, unjust or unreasonable.

The CPA also requires that landlords bring to the attention of all their tenants or prospective tenants certain provisions in their lease agreements.

Today, we only intend to deal with some of the sections of the Act which govern lease agreements and in particular some sections that deal with the terms and conditions in a lease agreement and also punitive clauses in particular.

Let us now look at some of these sections of the Act.

Sections 48 to 52 inclusive of the CPA deal with unfair, unreasonable and unjust contract terms.

Sections 48 & 49 prohibit suppliers (read landlords) from entering into any agreements on terms that are “unfair, unreasonable or unjust”, including any terms that require tenants to waive any rights or assume any obligations; waive any liability of the landlord or which impose as a condition of entering into a transaction, terms that are unfair, unreasonable or unjust and also prohibits ant agreement that favour the landlord excessively and to the detriment of the tenant.

This is a radical departure from the common law of contract as stated in our earlier blogs.

These sections of the Act also require a landlord, at the time of entering into a lease agreement, to notify the tenant of any term of the lease agreement that purports to limit the risk of liability of the landlord or any other person; or purports to constitute an assumption of risk or liability by the tenant; or purports to impose an obligation on the tenant to indemnify the landlord or any person for any cause; or purports to be an acknowledgement of any other fact by the tenant; and concerns any activity or facility that is subject to specific risks. This is long-winded; but essentially; the landlord cannot include clauses in a lease agreement which he fails to point out to a tenant and which restrict that tenants ordinary legal rights and protects the landlord to the exclusion of the tenant.

It is difficult to give examples of clauses that would be regarded as unfair, unreasonable or unjust; but in the past most lease agreements drawn up by landlords or their agents were so one sided and absolutely in favour of the landlord; and tenants had little say; but had to accept those terms or else look elsewhere for a lease. It was a question of take it or leave it.

That is now no longer the case and tenants can and do object to certain clauses and are successful in having them deleted from the lease.

In one example referred to us about a month ago; one of our clients, who approached us before signing a lease, had an objection to a clause in the lease which stipulated that there would be an agreed penalty of three months rental due to the landlord as a penalty in the event of the tenant giving notice to the landlord to terminate the lease agreement within the initial period of the lease. After we addressed an appropriate letter to the landlord’s agent, on behalf of our client the tenant; the landlord agreed to remove the clause in full from the lease agreement, prior to its being signed by the parties. This is just a simple example.

In general penalty clauses or indemnity clauses in favour of landlords in lease agreements will be regarded as falling within the ambit of a clause that is unfair, unreasonable and unjust and therefore unenforceable UNLESS it has specifically been pointed out by the landlord or their agent to the tenant; and the tenant has then agreed to those terms specifically despite their content. In other words you must object if they are pointed out to you. Other clauses that may well fall within the ambit of these sections are clauses where the tenant is forced to agree in advance to the state of repair of the property at the time of signature; without inspection or where there is a clause in the contract which stipulates that he must paint the property or clean the carpets at the end of the lease period. In our view such a clause may well be unduly favourable to the landlord to the exclusion of the tenant’s rights; depending on the facts of the case.

We trust that this explains to you some of your rights as a landlord or as a tenant.

Please have a look at our website www.legaladviceoffice.co.za for further information.

Should you have any queries please send us an email to This email address is being protected from spambots. You need JavaScript enabled to view it. and we will revert with a reply within 48 hours.

Should you otherwise wish to comment on this or any other legal topic; just send us an e-mail to the above email address or to This email address is being protected from spambots. You need JavaScript enabled to view it.; and we will respond as soon as possible.

Thank you.

The Legal Advice Office Team.

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Legal Advice Office

South Africa

Kandelaar Street, Vermont, Hermanus
Phone: +27 (028) 316 2832
Email: info@legaladviceoffice.co.za

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