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Do You Read Online Terms and Conditions? You Should and Here’s Why

Do You Read Online Terms and Conditions? You Should and Here’s Why

“The Internet is a Real Place with Real Consequences” (Rebecca MacKinnon, Internet policy expert)

We live in an age of online commerce. We buy and sell pretty much anything you can think of on the Internet, whilst contracting online for everything from an Uber ride to a plumber’s call out has become second nature.

So we should all know just how important it is to take note of those annoying little tick boxes saying things like “I agree to the terms and conditions available here” (with of course a hyperlink under the “here” leading you to a list of terms and conditions as long as your arm).

An interesting case recently before the High Court illustrates.

“I’ve won R5m” thought the online gambler

A regular visitor to a bookmaker’s online sports betting website was overjoyed when, after placing over 530 bets over an 8 month period, and for a stake of only R100, he successfully picked the winners in 8 different horse races.

His betting slip showed a “total possible payment” of R4,841,728 and that, thought the gambler, was exactly what he’d won (actually it would have been over R5m before tax).

Imagine his disappointment and distress when the bookmaker paid him only R1m, referring him to its online standard terms and conditions. Clause 9, pointed out the bookmaker, was headed “Maximum Payout” and imposed on every customer a daily winnings limit of R1m.

Unwilling to go down without a fight, the punter sued the bookmaker for the full amount. He hadn’t, he said, read the Ts and Cs (he is no doubt in very good company in that, which is indeed the point of this article) and anyway they were, he argued, overridden by the express reference on his betting slip to the full amount.

Let the signer beware

Unfortunately for him his luck had well and truly run out. The Court dismissed his claim with costs, holding that the “total possible payout” figure quoted on the betting slip could not entitle him to a payout in conflict with the daily limit.

Central to the Court’s decision was its finding that the gambler, when he opened his account on the site, must have ticked a box agreeing to the bookmaker’s standard terms and conditions. “When signing the document by placing an electronic tick in the box”, held the Court, “the applicant placed himself in the same position as a person who had physically signed the document. He is bound by the maxim caveat subscriptor [‘let the signer beware’], whether or not he actually took the trouble to read the terms”.

There’s a strong warning there to all of us – when the chips are down (so to speak) ticking those “I agree to the terms and conditions” boxes online binds you to them. You can’t try to evade them later on by saying “I didn’t actually read and understand them before agreeing – no one ever does”.  You’re probably thinking “life’s too short to read all that gumpf”. But then pick your times to be cavalier about it, and when there’s a lot at stake rather take the time to read and understand what you’re agreeing to.  Get legal advice in any doubt.

But wait, there’s more (a caution for online product and service providers)

This is an area of law still being explored by our courts, and particularly in these days of strong consumer protections, online service and product providers should note that the bookmaker’s case was bolstered by additional facts, two of them in particular –

  1. The punter had been exposed to specific warnings about the limits imposed on winnings both before every bet (i.e. more than 530 times) and thereafter on every betting slip,
  2. He always had easy access to the full Ts and Cs via a clickable icon.

Hence the Court’s conclusion that the bookmaker “takes all reasonable steps to ensure that the client assents to the terms and conditions before the account is opened and both prior and subsequent to the placing of any bet the punter is told about the limits on winnings.”

Perhaps the bookmaker would have won his case anyway on nothing more than the tick box and the “signer beware” principle, but on a better-safe-than-sorry basis online providers should perhaps follow the bookmaker’s lead on that one and not rely entirely on a one-off tick in a tick box.
(Read the article online on www.dotnews.co.za) – https://www.dotnews.co.za/Code/Article.aspx?qry=ZSpQuU5At1JrluIQsNfWTc2Jhw3dco00qmDitmB91yStvAc00OcQCLULRM6eEokybOuH31e0lavSMoci1yL6OSSnT4SGO62KXJqP1K8O1ZWZy4+mFJDCKWBE7F6+Bsb+7g85o293Yp+FmKCuDYixGJMboYQaX1WPi9lR8nv36vlc4y5BsWMi6pfJKm4Cd2ib

Have a great Long weekend!

Have a great long weekend everybody!

Congratulations to Juliette!

A belated congratulations to our co-founder Juliette Thirsk who got married on 3 March this year in Paternoster.

Congratulations to Juliette and Deon!

Wishing you a lifetime of happiness together!

DO YOU DO BUSINESS WITH EU CITIZENS?

In May 2016, the European Union (“EU“) adopted the General Data Protection Regulation (“GDPR“). This regulation introduces a new set of data protection rules that will increase data protection for EU residents and citizens and places more stringent guidelines on the treatment of their personal data.

It is important to note that the GDPR is not applicable only to entities located in the EU. In fact, its scope is so broad that it will apply to any entity around the world that processes personal data of individuals who are residents or citizens of the EU. Because South Africa has a thriving tourism industry with thousands of Europeans coming to its shores each year, this regulation will have a significant impact on many South African businesses. For example, any hotel that records personal data of a guest, who is an EU resident, will have to meet the requirements of the GDPR.

Although most South African businesses engaged in data processing will be aware of the Promotion of Protection of Personal Information Act 4 of 2013 (“POPI“) and its requirements, the GDPR imposes some restrictions on data processing that are not covered by POPI.

Therefore, it is important for any person or business that processes any personal information of EU residents or citizens to undergo, before the May 2018 deadline, a data processing assessment in order to determine whether or not your processing activities will comply with the GDPR.

 

Interview with ZoneRadio – Commercial Leases

Interview – LegalZone (Zone Radio)

Interview with Shelley Mackay Davidson for Brevity Law discusses commercial leases.

Commercial leases: Understanding the legalities

Whether you are Landlord or Tenant, it is imperative that you have an understanding of the legal and contractual implications of concluding a commercial lease, and what your rights and obligations are.

Shelley Mackay Davidson

Shelley Mackay Davidson

While there are many aspects to consider, some key issues are briefly discussed below. Too often parties don’t fully consider the implications when they sign a lease, and are left to deal with unintended consequences at a later stage when it may be too late to renegotiate unfavourable terms.

Beware the standard form lease – it may seem to be the simplest and cheapest route to use the letting agent’s or landlord’s standard form lease agreement, but unless the lease is tailored to suit your specific requirements, you could end up with problems later.  These leases are generally designed to protect the Landlord’s interests.

Premises –  describe the premises as accurately as possible, as to location and size. Attach a floor plan if available. Know what access and use the Tenant has to common areas such as hallways, rest rooms, kitchens, lifts and whether rental will be charged on these areas and at what rate. It is also imperative, if the rental is based on “lettable area”, as opposed to a fixed rental, that the parties agree on how the premises are measured, and what is included in the lettable area e.g. balconies, terraces, storerooms. The South African Property Association has a standard measurement method which is commonly used. The Tenant should be afforded an opportunity after occupation to note defects in the Premises, which the Landlord is then required to remedy. Whether the Landlord remedies all defects or only material defects, is the subject of negotiation. If the defects are of such a nature that the Tenant cannot enjoy the use and occupation of the premises, the Landlord will be in breach.

Rental – understand what is included and excluded from the rental. Often a base cost rental is charged per square metre for the premises. Over and above that, there may be charges for the Landlord’s operating costs, parking, rates and taxes, body corporate levies, consumption charges for electricity, water, refuse collection and sewerage, insurance. Know who is paying for what.

Lease period and renewal – Whilst the initial period is agreed, leases will often state that any renewal is to be agreed between the parties at a later stage. If you are looking for certainty, this is not ideal, as if the parties cannot agree, there will be no renewal and the lease ends. Negotiate provisions that guarantee the renewal, provided certain conditions are met and include an objective basis to determine the rental in the renewal period.

Deposits, suretyships, guarantees – it is usual for the Landlord to require a deposit to be paid either in cash or in the form of a guarantee. The Landlord may also require personal suretyships. As Tenant you may wish to negotiate that this requirement be waived in exchange for a more substantial deposit or parent guarantee.

Occupation Date – where the premises are still being constructed the lease may provide for the agreed occupation date to be moved to a later date when the premises are certified complete by the Landlord’s architect. There should be a cut-off date agreed after which if the premises are still not available for occupation, either party can cancel. It is wise for the Tenant to negotiate a rent-free period after occupation within which to effect installations.

Installations and reinstatement – if the Landlord is contributing towards the cost of installation, specify exactly what the tenant installation allowance is, how and under what circumstances it must be paid. It is also imperative that the parties agree what installations will belong to the Landlord, what belong to the Tenant, and what must be removed by the Tenant when the lease ends. The Tenant may be required to reinstate the premises to the condition they were in at the occupation date – if occupation was given in a shell state, the reinstatement obligations could be onerous. The Landlord would be well advised to request a reinstatement guarantee to cover the costs of reinstatement if the Tenant fails to do this.

Repairs and maintenance – generally the Tenant is responsible for maintaining the interior and the Landlord for the exterior of the premises, the Tenant returning the premises at the end of the lease in the same order it was given, fair wear and tear excepted. The parties could conclude what is called a “triple net” lease where the Tenant is responsible for all maintenance, repairs and upkeep, as if the Tenant is the Landlord. The parties must be certain as to the extent of their respective obligations.

Warranties and exclusion of liability – in most standard commercial leases the Landlord will give very few warranties and will contract out of all liability, even negligence or damage caused by Landlord’s breach of its obligations. As Tenant you would want the Landlord to be held responsible at least for its gross misconduct, wilful misconduct or losses caused as a result of the Landlord’s breach.

Change in Control –it is prudent for the Landlord to insist that change in control or ownership of a juristic Tenant only be done with its consent,  as the change in risk profile could be detrimental to the Landlord.

Redevelopment – it suits a Landlord to be allowed to redevelop its property, and in its discretion to cancel the lease or relocate the Tenant, however this can cause considerable cost and inconvenience to the Tenant. Compromises can be negotiated e.g. Landlord’s contribution towards the Tenant’s relocation costs, preventing the Landlord from cancelling for an initial period.

Consumer Protection Act – the Landlord needs to be aware that the CPA could apply to its leases – where it leases property in the course of its business and where the Tenant is a natural person or juristic person with an asset value or annual turnover of less than R2million per annum. This can have far-reaching consequences for both parties e.g. any lease longer than 2 years may be unenforceable and the Tenant may be entitled to cancel the lease, even a fixed-term lease, on 20 business days’ notice at any time.

The aim is to negotiate lease terms that match the very different needs of both Landlord and Tenant and parties would be well advised to seek legal advice before concluding a lease. Even if the Tenant is unable to renegotiate a Landlord’s standard form lease, at least the Tenant will be aware of potentially onerous and one-sided provisions.

Shelley Mackay-Davidson is a partner at Brevity Law, a niche law firm based in Cape Town (www.brevitylaw.co.za)

Contractual and legal insights into commercial leases

Whether you are entering into a commercial lease as a landlord or as a tenant, it is imperative that you have an understanding of the legal and contractual implications in doing so, and what your rights and obligations are.

This article does not purport to be exhaustive, but will highlight some important issues and aspects you need to be aware of when negotiating and concluding a commercial lease.

Beware the standard form lease

It may seem to be the simplest and cheapest route to use the letting agent’s or landlord’s standard form lease agreement, but unless the lease is tailored to suit your specific requirements, you could end up with problems later. These leases are generally designed to protect the landlord’s interests.

Premises

Describe the premises as accurately as possible, as to location and size. Attach a floor plan if available. Know what access and use the tenant has to common areas such as hallways, rest rooms, kitchens, lifts and whether rental will be charged on these areas and at what rate. It is also imperative, if the rental is based on lettable area’, as opposed to a fixed rental, that the parties agree on how the premises are measured, and what is included in the lettable area e.g. balconies, terraces, storerooms.

The South African Property Association has a standard measurement method which is commonly used. The tenant should be afforded an opportunity after occupation to note defects in the premises, which the landlord is then required to remedy. Whether the landlord remedies all defects or only material defects, is the subject of negotiation. If the defects are of such a nature that the tenant cannot enjoy the use and occupation of the premises, the landlord will be in breach.

Rental

Understand what is included and excluded from the rental. Often a base cost rental is charged per square metre for the premises. Over and above that, there may be charges for the landlord’s operating costs, parking, rates and taxes, body corporate levies, consumption charges for electricity, water, refuse collection and sewerage, insurance. Know who is paying for what.

Lease period and renewal

Whilst the initial period is agreed, leases will often state that any renewal is to be agreed between the parties at a later stage. If you are looking for certainty, this is not ideal, as if the parties cannot agree there will be no renewal and the lease ends. Negotiate provisions that guarantee the renewal, provided certain conditions are met and include an objective basis to determine the rental in the renewal period.

Deposits, suretyships, guarantees

It is usual for the landlord to require a deposit to be paid either in cash or in the form of a guarantee. The landlord may also require personal suretyships. As tenant you may wish to negotiate that this requirement be waived in exchange for a more substantial deposit or parent guarantee.

Occupation date

Where the premises are still being constructed the lease may provide for the agreed occupation date to be moved to a later date when the premises are certified complete by the landlord’s architect. There should be a cut-off date agreed after which if the premises are still not available for occupation, either party can cancel. It is wise for the tenant to negotiate a rent-free period after occupation within which to effect installations.

Installations and reinstatement

If the landlord is contributing towards the cost of installation, specify exactly what the tenant installation allowance is, how and under what circumstances it must be paid. It is also imperative that the parties agree what installations will belong to the landlord, what belongs to the tenant, and what must be removed by the tenant when the lease ends. The tenant may be required to reinstate the premises to the condition they were in at the occupation date – if occupation was given in a shell state, the reinstatement obligations could be onerous. The landlord would be well advised to request a reinstatement guarantee to cover the costs of reinstatement if the tenant fails to do this.

Repairs and maintenance

Generally the tenant is responsible for maintaining the interior and the landlord for the exterior of the premises, the tenant returning the premises at the end of the lease in the same order it was given, fair wear and tear excepted. The parties could conclude what is called a ‘triple net’ lease where the tenant is responsible for all maintenance, repairs and upkeep, as if the tenant is the landlord. The parties must be certain as to the extent of their respective obligations.

Warranties and exclusion of liability

In most standard commercial leases the landlord will give very few warranties and will contract out of all liability, even negligence or damage caused by landlord’s breach of its obligations. As tenant you would want the landlord to be held responsible at least for its gross misconduct, wilful misconduct or losses caused as a result of the Landlord’s breach.

Change in control

It is prudent for the landlord to insist that change in control or ownership of a juristic tenant only be done with its consent, as the change in risk profile could be detrimental to the landlord.

Redevelopment

It suits a landlord to be allowed to redevelop its property, and in its discretion to cancel the lease or relocate the tenant, however this can cause considerable cost and inconvenience to the tenant. Compromises can be negotiated, e.g. landlord’s contribution towards the tenant’s relocation costs, preventing the landlord from cancelling for an initial period.

Consumer Protection Act

The landlord needs to be aware that the CPA could apply to its leases – where it leases property in the course of its business and where the tenant is a natural person or juristic person with an asset value or annual turnover of less than R2m per annum. This can have far-reaching consequences for both parties, e.g. any lease longer than two years may be unenforceable and the tenant may be entitled to cancel the lease, even a fixed-term lease, on 20 business days’ notice at any time.

The aim is to negotiate lease terms that match the very different needs of both landlord and tenant and parties would be well advised to seek legal advice before concluding a lease. Even if the tenant is unable to renegotiate a landlord’s standard form lease, at least the tenant will be aware of potentially onerous and one-sided provisions.

Understanding the legalities of commercial leases

Understanding the legalities of commercial leases

Whether you are a landlord or tenant, it is imperative that you have an understanding of the legal and contractual implications of concluding a commercial lease, and what your rights and obligations are.

While there are many aspects to consider with a commercial lease, some key issues are briefly discussed below. Too often parties don’t fully consider the implications when they sign a lease, and are left to deal with unintended consequences at a later stage when it may be too late to renegotiate unfavourable terms.

Beware the standard form lease

It may seem to be the simplest and cheapest route to use the letting agent’s or landlord’s standard form lease agreement, but unless the lease is tailored to suit your specific requirements, you could end up with problems later.  These leases are generally designed to protect the landlord’s interests.

Premises

Describe the premises as accurately as possible, as to location and size. Attach a floor plan if available. Know what access and use the Tenant has to common areas such as hallways, rest rooms, kitchens, lifts and whether rental will be tharged on these areas and at what rate. It is also imperative, if the rental is based on “lettable area”, as opposed to a fixed rental, that the parties agree on how the premises are measured, and what is included in the lettable area e.g. balconies, terraces, storerooms.

The South African Property Association has a standard measurement method which is commonly used. The tenant should be afforded an opportunity after occupation to note defects in the Premises, which the Landlord is then required to remedy.

Whether the landlord remedies all defects or only material defects, is the subject of negotiation. If the defects are of such a nature that the tenant cannot enjoy the use and occupation of the premises, the landlord will be in breach.

Rental

Understand what is included and excluded from the rental. Often a base cost rental is charged per square metre for the premises. Over and above that, there may be charges for the landlord’s operating costs, parking, rates and taxes, body corporate levies, consumption charges for electricity, water, refuse collection and sewerage, insurance. Know who is paying for what.

Lease period and renewal

Whilst the initial period is agreed, leases will often state that any renewal is to be agreed between the parties at a later stage. If you are looking for certainty, this is not ideal, as if the parties cannot agree, there will be no renewal and the lease ends. Negotiate provisions that guarantee the renewal, provided certain conditions are met and include an objective basis to determine the rental in the renewal period.

Commercial -property -deposit

Deposits, suretyships, guarantees

It is usual for the landlord to require a deposit to be paid either in cash or in the form of a guarantee. The landlord may also require personal suretyships. As a tenant you may wish to negotiate that this requirement be waived in exchange for a more substantial deposit or parent guarantee.

Occupation Date

Where the premises are still being constructed the lease may provide for the agreed occupation date to be moved to a later date when the premises are certified complete by the landlord’s architect. There should be a cut-off date agreed after which if the premises are still not available for occupation, either party can cancel. It is wise for the tenant to negotiate a rent-free period after occupation within which to effect installations.

Installations and reinstatement

If the landlord is contributing towards the cost of installation, specify exactly what the tenant installation allowance is, how and under what circumstances it must be paid. It is also imperative that the parties agree what installations will belong to the landlord, what belong to the tenant, and what must be removed by the tenant when the lease ends.

The tenant may be required to reinstate the premises to the condition they were in at the occupation date – if occupation was given in a shell state, the reinstatement obligations could be onerous. The landlord would be well advised to request a reinstatement guarantee to cover the costs of reinstatement if the tenant fails to do this.

Repairs and maintenance

Generally the tenant is responsible for maintaining the interior and the Landlord for the exterior of the premises, the tenant returning the premises at the end of the lease in the same order it was given, fair wear and tear excepted. The parties could conclude what is called a “triple net” lease where the tenant is responsible for all maintenance, repairs and upkeep, as if the tenant is the landlord. The parties must be certain as to the extent of their respective obligations.

Warranties and exclusion of liability

In most standard commercial leases the landlord will give very few warranties and will contract out of all liability, even negligence or damage caused by landlord’s breach of its obligations. As tenant you would want the landlord to be held responsible at least for its gross misconduct, wilful misconduct or losses caused as a result of the landlord’s breach.

Change in Control

It is prudent for the landlord to insist that change in control or ownership of a juristic tenant only be done with its consent, as the change in risk profile could be detrimental to the landlord.

Commercial -property -redevelopment

Redevelopment

It suits a landlord to be allowed to redevelop its property, and in its discretion to cancel the lease or relocate the tenant, however this can cause considerable cost and inconvenience to the tenant. Compromises can be negotiated e.g. landlord’s contribution towards the tenant’s relocation costs, preventing the landlord from cancelling for an initial period.

Consumer Protection Act

The landlord needs to be aware that the CPA could apply to its leases – where it leases property in the course of its business and where the tenant is a natural person or juristic person with an asset value or annual turnover of less than R2million per annum. This can have far-reaching consequences for both parties e.g. any lease longer than 2 years may be unenforceable and the tenant may be entitled to cancel the lease, even a fixed-term lease, on 20 business days’ notice at any time.

The aim is to negotiate lease terms that match the very different needs of both landlord and tenant and parties would be well advised to seek legal advice before concluding a lease. Even if the tenant is unable to renegotiate a landlord’s standard form lease, at least the tenant will be aware of potentially onerous and one-sided provisions.

 

From https://bizconnect.standardbank.co.za/sector-news/real-estate/understanding-the-legalities-of-commercial-leases.aspx

Interview With Zone Radio – Bitcoin & Blockchain

Informative and interesting interview with ‪#‎ShelleyMackayDavidson (@shellsMD) and ‪#‎JulietteThirsk (@Juliette_Thirsk) discussing ‪#‎bitcoins and ‪#‎blockchain on the Legal Zone.

Polity – Commercial Leases – Some Insights

Commercial Leases

Commercial Leases – Some Insights

Whether you are entering into commercial leases as a Landlord or as a Tenant, it is imperative that you have an understanding of the legal and contractual implications in doing so, and what your rights and obligations are. This article does not purport to be exhaustive, but will highlight some important issues and aspects you need to be aware of when negotiating and concluding a commercial lease.

Beware the standard form lease – it may seem to be the simplest and cheapest route to use the letting agent’s or landlord’s standard form lease agreement, but unless the lease is tailored to suit your specific requirements, you could end up with problems later. These commercial leases are generally designed to protect the Landlord’s interests.

Premises – describe the premises as accurately as possible, as to location and size. Attach a floor plan if available. Know what access and use the Tenant has to common areas such as hallways, rest rooms, kitchens, lifts and whether rental will be charged on these areas and at what rate. It is also imperative, if the rental is based on “lettable area”, as opposed to a fixed rental, that the parties agree on how the premises are measured, and what is included in the lettable area e.g. balconies, terraces, storerooms. The South African Property Association has a standard measurement method which is commonly used. The Tenant should be afforded an opportunity after occupation to note defects in the Premises, which the Landlord is then required to remedy. Whether the Landlord remedies all defects or only material defects, is the subject of negotiation. If the defects are of such a nature that the Tenant cannot enjoy the use and occupation of the premises, the Landlord will be in breach.

Rental – understand what is included and excluded from the rental. Often a base cost rental is charged per square metre for the premises. Over and above that, there may be charges for the Landlord’s operating costs, parking, rates and taxes, body corporate levies, consumption charges for electricity, water, refuse collection and sewerage, insurance. Know who is paying for what.

Lease period and renewal – Whilst the initial period is agreed, leases will often state that any renewal is to be agreed between the parties at a later stage. If you are looking for certainty, this is not ideal, as if the parties cannot agree, there will be no renewal and the lease ends. Negotiate provisions that guarantee the renewal, provided certain conditions are met and include an objective basis to determine the rental in the renewal period.

Deposits, suretyships, guarantees – it is usual for the Landlord to require a deposit to be paid either in cash or in the form of a guarantee. The Landlord may also require personal suretyships. As Tenant you may wish to negotiate that this requirement be waived in exchange for a more substantial deposit or parent guarantee.

Occupation Date – where the premises are still being constructed the lease may provide for the agreed occupation date to be moved to a later date when the premises are certified complete by the Landlord’s architect. There should be a cut-off date agreed after which if the premises are still not available for occupation, either party can cancel. It is wise for the Tenant to negotiate a rent-free period after occupation within which to effect installations.

Installations and reinstatement – if the Landlord is contributing towards the cost of installation, specify exactly what the tenant installation allowance is, how and under what circumstances it must be paid. It is also imperative that the parties agree what installations will belong to the Landlord, what belong to the Tenant, and what must be removed by the Tenant when the lease ends. The Tenant may be required to reinstate the premises to the condition they were in at the occupation date – if occupation was given in a shell state, the reinstatement obligations could be onerous. The Landlord would be well advised to request a reinstatement guarantee to cover the costs of reinstatement if the Tenant fails to do this.

Repairs and maintenance – generally the Tenant is responsible for maintaining the interior and the Landlord for the exterior of the premises, the Tenant returning the premises at the end of the lease in the same order it was given, fair wear and tear excepted. The parties could conclude what is called a “triple net” lease where the Tenant is responsible for all maintenance, repairs and upkeep, as if the Tenant is the Landlord. The parties must be certain as to the extent of their respective obligations.

Warranties and exclusion of liability – in most standard commercial leases the Landlord will give very few warranties and will contract out of all liability, even negligence or damage caused by Landlord’s breach of its obligations. As Tenant you would want the Landlord to be held responsible at least for its gross misconduct, wilful misconduct or losses caused as a result of the Landlord’s breach.

Change in Control – it is prudent for the Landlord to insist that change in control or ownership of a juristic Tenant only be done with its consent, as the change in risk profile could be detrimental to the Landlord.
Redevelopment – it suits a Landlord to be allowed to redevelop its property, and in its discretion to cancel the lease or relocate the Tenant, however this can cause considerable cost and inconvenience to the Tenant. Compromises can be negotiated e.g. Landlord’s contribution towards the Tenant’s relocation costs, preventing the Landlord from cancelling for an initial period.

Consumer Protection Act – the Landlord needs to be aware that the CPA could apply to its leases – where it leases property in the course of its business and where the Tenant is a natural person or juristic person with an asset value or annual turnover of less than R2million per annum. This can have far-reaching consequences for both parties e.g. any lease longer than 2 years may be unenforceable and the Tenant may be entitled to cancel the lease, even a fixed-term lease, on 20 business days’ notice at any time.

The aim is to negotiate lease terms that match the very different needs of both Landlord and Tenant and parties would be well advised to seek legal advice before concluding a lease. Even if the Tenant is unable to renegotiate a Landlord’s standard form lease, at least the Tenant will be aware of potentially onerous and one-sided provisions.

Polity Article

Written by Shelley Mackay-Davidson, partner, Brevity Law, a niche law firm based in Cape Town