Rent Payment On The 7th Myth

by Emile Grobbelaar

Rent Payment

We come across it very often where tenants are very relaxed about not paying their rent on the 1st of every month, even though the lease they signed and accepted stipulates the 1st of every month. When we contact them, demanding payment when rent was not received on the 1st, we realise that they believe they have until the 7th to pay even though this arrangement was never actually made.

Why is it that so many tenants believe it is acceptable to pay their rent on the 7th of the month and not on the 1st, as clearly stipulated in the lease agreement?

This wrong belief is caused by our very own law, specifically the Rental Housing Act, which prescribes the timeframes of rectifying a breach of a contract or lease. Let me explain:

All lease agreements stipulate that rent must reflect in the landlord's/representative agent's bank account by no later than the 1st of every month. If it does not reflect in the bank account on that date, it is a breach of contract and the tenant must be informed in writing of that breach. The act gives the tenant 7 days to rectify this.

This is why many tenants have this false belief that it's acceptable to pay after the 1st, unaware that they are actually in breach of contract every time. Tenants should be reminded of this (in writing) every time it happens.

The lease agreement further stipulates that if the same breach of contract occurs three times in a row, the landlord may cancel the lease and evict the tenant. This is why it is very important that the landlord/managing agent notifies the tenant every single time there is a breach.

Non- or late payment of rent is considered a 'material breach', which is even more serious. What is the difference between a regular breach and a material breach in a lease agreement?

A material breach is an action by one of the parties to a lease agreement which undermines the very substance of the agreement and the rights arising from the terms thereof.

What constitutes a material breach must therefore be determined with reference to the provisions of the agreement itself, as well as the rights and duties accorded to each of the parties thereto.

Example: Keeping more pets than what the lease allows. If it was specifically agreed that you may only keep a certain number of pets on the property, and you violate that aspect of the agreement, the landlord is fully entitled to put you to terms and call upon you to remedy your breach.

In short, if the conduct is expressly prohibited by the agreement, the landlord is lawfully entitled to take necessary steps to enforce compliance on your part. However, if the conduct is not expressly prohibited by the agreement, the landlord may not seek to impose any additional duties and/or obligations that are not provided for in terms of the lease.

Taking the above into consideration, it is very important that any breach, material or otherwise, must be actioned by the landlord, in writing, to ensure that the tenant knows he/she is in breach and that all terms and conditions of the lease will be enforced by the landlord. It will also give the landlord the legal right to cancel a lease, if he/she wishes to do so, if these notices of breach are in writing and on file.

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