Paid and ready to move in, but an occupied property prevents new tenants from moving in. What now?
Category Advice
A Property24 reader says she and her partner signed a new lease, paid a deposit plus the damage fee, and were supposed to move into the rental on 5 February 2023. However, the landlord now advised them that the previous tenants will only be moving out on 15 February 2023, which leaves them with no choice but to wait for the tenants to move out.
"Is this legal of them to charge us for rental, deposit, and damage fee upfront when we are not in the rental place yet, and when we have a contract in place signed by both parties?" asks the reader.
Kim Bam, Managing Director at Bam Law responds with the following advice:
In order to fully answer this question, one would need to have sight of the lease agreement entered into between both parties. If the lease states that the rental property would be available for occupancy on 5 February 2023 and the landlord is unable to fulfil that obligation, you may place the landlord in breach of contract.
Should you place the landlord in breach and he does not remedy the breach within the prescribed period you may either elect to cancel the contract or apply for specific performance.
Specific performance is when you call upon the breaching party to perform in terms of its contractual obligations. When applying for this remedy one needs to consider whether or not is possible for the breaching party to perform its contractual obligations or whether an alternative remedy may be more suitable in the situation.
Cancellation of the contract is another remedy which may be used if the party remains in breach. If a party elects to cancel the agreement the party will be released from further obligations under the contract. Cancellation of the contract has the effect of putting an end to the contact and both parties are released of their obligations.
In certain cases, the cancellation of the contract may result in damages, such as when one party has incurred expenses or suffered losses as a result of the breach. In such cases, the cancelling party may be entitled to claim damages from the party responsible for the breach.
In situations such as the one above if the landlord had agreed the property would be available on a certain date and the property is not made available the tenant may place the landlord in breach of the agreement.
Another alternative may be for both parties to come to an agreement whereby the rental is reduced pro rata for the period whereby the landlord has been unable to fulfil their obligation.
If both parties cannot agree on a solution, it may be necessary to seek legal assistance. Obtaining legal advice is important when a party is of the opinion that a breach has occurred. This may guard against insufficient protection in instances of a breach and also ensure that proper processes are followed when an innocent party is seeking to enforce the remedies available to it.
Author: Property24