Agreed Terms vs Legislation

Many lease agreements contain clauses that are referred to as “clauses to the benefit of the lessor”. These will be, for instance, clauses allowing the lessor to lock out, disconnect electricity, allowing the lessor to give a month’s notice of cancellation on a fixed term lease, exclusion of the Prevention of Illegal Evictions Act and similar creative, yet unenforceable clauses. Even though we would like to see leases protecting lessors, it is important to realise that legislation will always trump these clauses.

The Consumer Protection Act is very clear that no agreement may contain any unreasonable clauses. Therefore, should a lease agreement contain an unreasonable clause as one of the examples mentioned above, the entire agreement is at risk of being disregarded. Further to this, clauses like this would merely be disregarded when a dispute should arise relating to the agreement. Therefore any action taken based on a clause such as this would still not fall within the allowed legal perimeters. These clauses create a false sense of security for the lessor and would create the perception that unlawful actions will be allowed.

To have a reasonable lease protecting both the lessor and lessee might not seem as attractive to a lessor, but will be enforceable, and as such have the desired results. Placing a tenant in a property with a valid, enforceable and well drafted lease agreement will lead to successful property investment in the overt majority of circumstances. Concurrently, an enforceable lease agreement and its provisions have the added benefit, that when an attorney has to attend to an eviction or summons, she can proceed unhindered. This will lead to less frustration as well as shorter and more effective litigation. Inherently, if you study the pros and cons, the valid lease agreement is the only option.

Be rental-smart, get the right answers and as always #happyrenting.