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Agreed occupation date changed, can my deposit be kept until a new tenant is found?

Fighting over money

Q

I signed a lease agreement for a property I was supposed to occupy on 1 October 2017. After paying over the deposit, the landlord informed that, due to personal reasons, they cannot grant occupation on that date. We discussed possibilities of moving occupation to 1 November but did not amend the lease to this effect.

On 29 September 2017 I sent landlord notification to cancel lease for 1 October 2017 since occupation will not be granted and informed them I am not interested in entering a new lease from 1 November 2017. The Landlord then responded that no deposit will be refunded until a replacement tenant can be found and if none found I will be liable for rent from November until one is found. Is this correct, can the landlord do this?

Because I could not afford to lose my deposit I then went back to the landlord and asked that a new lease for 1 November 2017 be signed. The landlord refused this but will still not refund me until a replacement tenant is found.

The landlord will soon be traveling out of the country for an unspecified period. I am worried I will not get my money back. – Abigail

A

Hi Abigail, the deciding factor here is whether a valid lease agreement came into place.  If you and the landlord agreed to extended occupation to 1 November and this is in writing there is a valid agreement and then the landlord is entitled to claim reasonable damages from you.

If one can state that the original lease agreement was cancelled due to the landlord being unable to give occupation as from 1 Oct 2017 you are entitled to claim your deposit back.  I am, however, worried as it unclear whether the lease agreement was amended to give occupation as from 1 November 2017. If this is the case, you can still give 20 business days’ notice but will be held liable for a reasonable penalty, which takes into consideration the loss of income.


Ed’s note: From Elize’s advice it is clear that it all depends what your lease agreement says. These are the main requirements for a lease to be valid.


Got a burning question? Email mariette@hometimes.co.za an we’ll be sure to assist you


Answered by Elize Le Roux, managing director at Xpello, which offers eviction process and other property investment management.

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Mariette Steynberg is a qualified economist with a post-graduate diploma in financial planning. She has enjoyed working on holistic financial plans for clients in various stages of life, as well as a development economist assessing the socioeconomic impacts of new developments. When she is not working, Mariette enjoys parenting her quirky, delightful toddler girl. Cloth diapering, Eskimo kisses and the importance of reading to your child are all causes close to her heart. Mariette is passionate about financial education and hopes to use the experience she has gained to share knowledge with HomeTimes’ readership. Her goal is to provide information that is implementable by everyone.

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