The effect of force majeure on the rights and obligations relating to monthly rental. Private and commercial landowners have a right to receive prompt and regular rental payments under a lease agreement.
Failure to pay rental promptly and in full will usually constitute a breach of the lease, which in turn could entitle the landowner to cancel the lease, evict the tenant and claim arrear rental and damages from the tenant.
Does COVID-19, the lockdown or the state of disaster entitle tenants to withhold rent?
South Africa’s laws around impossibility of performance derives from English law. The interchangeable terms force majeure (French) and vis major (Latin), which means ‘major force’, and casus fortuitus (Latin for ‘accidental occurrence’), refer to a supervening event which prevents performance under a contract.
South African law does not automatically apply force majeure principles to contracts. Parties must specifically include it in their contracts and must spell out what exactly constitutes force majeure in the contract itself. The same applies to lease agreements.
If the contract is silent on force majeure, then the tenant may not withhold rent.
If the contract does include a force majeure clause, and if all the requirements of force majeure are met, then the tenant may withhold rent in part or entirely.
Requirements of Force Majeure
- Performance must be objectively impossible and not merely cause an inconvenience or disturbance in the performance of obligations;
- Impossibility must be absolute as opposed to probable;
- It must be absolute as opposed to relative, in other words, if it relates to something which can be done in general, but the one seeking to escape liability cannot do it personally, then such party remains liable in contract;
- The impossibility must be unavoidable by a reasonable person;
- It must not be the fault of either party If the impossibility could or should have been foreseen, then the party remains liable;
- The mere fact that a disaster or event was foreseeable, does not necessarily mean that it ought to have been foreseeable or that it is avoidable by a reasonable person.
In the 2019 case Joint Venture between Aveng (Africa) (Pty) Ltd and Strabag International GmbH v South African National Roads Agency SOC Ltd and Another[1], the court went further and noted, in obiter remarks, that a party seeking to escape liability should make an effort to overcome the impossibility. It cannot simply sit back and allege impossibility of performance. It must take positive steps to overcome the impossibility.
Ultimately, the court held that the applicant’s refusal to return to the site on which it was contracted to perform work and its subsequent cancellation of the agreement on the basis of force majeure had no legal basis.
It, therefore, appears that the party alleging a force majeure can be called upon to answer for the steps it took to mitigate the adverse effects of the force majeure event.
Application to leases
From the above, it appears that South African law requires that a strict test must be applied to determine whether a tenant will be excused from performance during the lockdown period.
A commercial tenant which is still able to trade, albeit constrained in trading, will not be excused from paying rent during lockdown.
At most, the tenant will qualify for a reduced rent in accordance with the severity of the constraint it suffered due to the lockdown.
The onus will be on the tenant to prove how badly its business suffered. A commercial tenant which is able to trade at 50% of normal capacity, will not be excused from more than 50% of its ordinary rental obligation.
The same principles apply to a private tenant. A private tenant who will continue to receive her full salary during lockdown, will not be excused from paying rent as performance is still objectively possible.
A private tenant who is self-employed, but operating as an essential service provider, will only be excused from a portion of his rent, to the extent that he is able to prove:
- that he has suffered a loss of income
- that he took steps to mitigate the loss
- that he is unable to pay the rent in full
- that he has already suffered the losses (not that it will occur in future)
- that he could not have been expected to avoid the impossibility; and
- that he is not at fault.
Tenants which may very well qualify to be excused, are those businesses which may not trade during lockdown, for example bars, restaurants, hotels, churches, retail stores and musicians.
Tenants which have been adversely affected, but have a lot of retained earnings or savings, would however not satisfy the requirement of being unable to pay the rent in full as they are able to draw from their reserves. In this way, wealthy individuals and profitable businesses would not be excused from performance.
Tenants who guaranteed performance, cannot rely on a defence of supervening impossibility.
Conclusion
There are no hard and fast rules regarding supervening impossibility of performance – each matter must be judged on its own merit. Tenants and landlords are encouraged to seek legal advice if they are uncertain as to their rights.
Contact us
If you need advice on your eviction case or would like us to represent your case, get in touch with Le Roux Attorneys
Footnote:
- (8331/19) [2019] ZAGPPHC 97; [2019] 3 All SA 186 (GP) (22 March 2019)
Hi is it possible for a family member of the deceased landlord to sell the property while we lived there for the pass 18 years till date….with any legal documents…..my dad is current for the pass /6 months he is out of a job and this family keeps pressuring us to leave the premises as he wants to sell….till date we have been on time with the payment of the rent with the help of families….please assist
Hi I’m an artist manager and MC in gigs for extra cash, Due to the pandemic my hustle is narrowed, I’m renting I wont afford to pay full amount can I use this law as an advantage
My landlord took my everything because i paid a rent late plaese i need help i went to police station i didn’t help
I am a freelance designer that focuses mainly In the exhibition industry. For 6 months I have not been able to earn any income. I have done the few odd jobs to put food on my table but defiantly not enough to pay rent. I have explained this to my land lord and repeatedly asked him to be understanding about this whole pandemic issue. I received a letter from his lawyers stating I have breached my contract and ow him for the amount outstanding(which is understandable) but he is unwilling to compromise nor negotiate the arrears. Or even communicate(leading up to the lockdown my account was in good standing). I however did find myself employment moving into lockdown level 1 as the industry has now been opened up. What is my recourse moving forward and how can I selvage the relationship with my landlord without having going through the courts and the process of being evicted.
i’m self employed, my business failed due to covid-19,i did not pay my rent and the landlord said i will be evicted in five days and my family of 5 children will on the street. waiting for your advice
Good day our landlord gave us notice to moved due to no payment for rental due to lockdown and govid 19 i am a external agent and due to my age and underlying health condition i am not allowed back to the office until the company is allow to do so we did apply for accommodation at a Rotary falicity and waiting we need to move 30/09/2020 no place yet to stat
Hi, so I am subletting a room from my flat mate who’s the primary tenant. I have been paying the rent fully up until Covid-19 happened I’ve only been able to pay most, for the past two months now. I told him I might not be able to pay him or might only be able to pay him what I can, he comes and says he doesn’t want to hear that he wants me to sign an addemdum to the contract that says if I don’t pay or pay fulling I have to move out in 3 months I told him no I can’t sign that. Its not my fault I can’t pay you full rent the are people who aren’t even paying anything but I still make an effort cause am depending on uif to pay you. He says if you can pay move out by months end I yell him thats illegal. So what can I do what help can you guys offer thank you.
Hi my tenant moved in before the lockdown under false pretenses and now more people are living in the granny flat I don’t have a lease with him and he hasn’t paid a cent in rental and never once contacted me with this regard when I went to him to talk he just becomes aggressive and says he doesn’t have money but yet he has dstv and money for alcohol this man runs to.saps and complain that I want him out of my house it’s been 5 months and not a penny of rent from him what can I do
Good day, we are facing eviction due to delayed contract extensions as a result of the Covid – 19. Do our landlords have a right to evict us or even cut out water supply and electricity? I have 4 children and getting food on the table is already a mission.
I need your advice about this issue as I am affected by lockdown and have not receive a full salary. I work in retail and now my landlords want evict me and he want me to pay the full outstanding rent that I was unable to pay due to Covid-19. I am still waiting for any UIF payment. What should I do?
Can they increase rent during lockdown
hi ek huur nou al 3jaar maar ek bly in n garage wat nie beskik is om in te bly nie. Die landlord het vir my gepromises dat hy gaan die plek renovate en ek betaal 1500 elke maand. Maar hy het n seperate plek aan gebou sodat n mens dit nie kan sien nie. Toe het hy ander mense gevat en daar bly maar ek bly langer as hule daar. Hy het vir hom hekke laat aan sit wat met sleutels werk toe gee hy vir hule n sleutel maar ek moet kom klomp aan hule deur en nog lank wag tot hule eendag gaan uit kom en oop sluit vir my of ek moet oor die muur spring om werk toe te gaan. die plek het niks vensters of ceiling in nie en die wind waai so sterk in die plek in. En nou wil hy he ek moet vir my n ander plek gaan soek om te bly.ek sal waardeur as u net kan kom kyk ook hoe lyk die plek want hy het self gese n mens kan nie daar in bly nie. KAN U ASB NET VIR MY HELP EN SE WAT MOET EK DOEN. GROOT ASB
I need your advice about this issue as i am affected by lockdown and not yet received any salary and now my landlords want evict me as i am still waiting for the uif. What should i do
I would like to know. Both my husband and I have been working for an alcohol company we have not been paid since may and could not afford to pay our rent so now we being evicted what can we do
I am a student & I started a food business to pay for my rent. But due to the lockdown I have been failing to pay for my rent I then decided to cancel my contract but as a result I was told I will have to pay a cancellation fee which is 50% of the total rent I was supposed to pay this year. Meaning I have to pay the outstanding rent from April till August.
I went home in April but left some of my things behind in my room.
I wanted to ask if there is a way I can work around this matter.
Good day just to find out the landlord wants to evict us because we cant afford to pay rent our business is cloesed due to lockdown and cant operate what can we do.
Iam to be evicted due to lockdown.
I’m told to pay rent asap of I move our.
Where will I go the company I work for is Hospitality industry and no income from uif since March.
Need your help asap.
Wil net hoor wat staan ons tedoen die landlord wil ons uit sit want ons kan nie huur betaal nie. Maar ons is onder lockdown en moet wag vir uif want daar is geen geld wat inkom nie. Wat staan ons tedoen
I am unable to pay any legal costs majorly to pay rent in a private owned property flat. I am in the food industry as an employee and did not received salary in April which made it impossible to pay rent. I need advise on how to go about it. The landlord is in Cameron the agemnt is First Property trust