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Christo Smith Law Blog

Morals landlords and the law

The Covid-19 pandemic has hit many businesses hard, in many instances to the point of closure. Some Landlords have shown empathy, however, not everyone has the same perception of what empathy is.

Landlords, in many instances, grant generous extensions and reductions for payment of arrear rent, however, most  require the tenant to bring the arrears up to date over an extended period. Is this  real, or ostensible empathy?

Landlords argue that once a business recovers, it can catch up on the arrears, so to speak. But can tenants really ever recover such losses? We believe that the notion that lost income as result of the lockdown and its aftermath can be recovered, is a fallacy. Its water under the bridge. Over. Finito. Businesses that have suffered these losses have made an irrevocable sacrifice.  A tenant is in a different position than a landlord. A landlord can, on the basis of the lease, recover its “lost” rental, albeit over an extended period. The tenant, on the other hand, who runs a business, can never recover lost income. A tenant’s clients are not going to pitch up after the lockdown and suddenly do twice the business to make up for the tenant’s losses. A tenant does not have the luxury of a lease that a landlord has. It doesn’t work that way.

Therefore, a landlord, giving an extension on outstanding rent, is showing ostensible empathy. Its a sugar-coated “sacrifice”. These landlords are clearly not willing to make any real sacrifices due to Covid-19. They expect everyone else to make sacrifices, but not them. They pat their tenants on the back with a smirky, “don’t worry, you can pay the arrears over whichever period suits you”. Thank you very much. How must a tenant ever achieve that goal? These landlords  are arrogant, selfish, and inconsiderate. And you can add, immoral.

This is where the law needs to reflect morality. The extraordinary situation Covid-19 has caused, requires adaptation of legal principles on the basis of fairness and equity as reflected by public opinion and normative values. We are convinced public opinion is overwhelmingly in favour of a rental moratorium or “holiday” in instances where businesses have suffered irreparable damages through loss of income. In addition, the principles of vis major and impossibility of performance, may also come to the aid of tenants in distress. It is unconscionable that for some sectors of society, its “business as usual” to the detriment of others.

Tenants must show courage and make their voices heard. The lease agreement is not cast in stone  – take them on.

Morals landlords and the law