A lease agreement can be defined as a reciprocal agreement between a lessor/landlord and lessee/tenant in terms of which the landlord agrees to give the tenant temporary use and enjoyment of the property in exchange for payment of rent by the tenant. This means both parties are bound by the terms contained in the agreement and neither of them are allowed to unilaterally change any term without the other party’s consent.
In terms of the landlord’s duty to give the lessee use and enjoyment of the property, the landlord has to allow the tenant access to the property together with the undisturbed use and enjoyment thereof. A lease agreement can also include the use and enjoyment of additional services such as cleaning or gardening services. The landlord and the tenant however have to agree whether an extra fee or charge will be payable for these additional services, either by it being contained in the lease agreement or in a subsequent addendum to the lease agreement.
This position has been confirmed by the Western Cape High Court in the case of Bodies Under Construction CC and Others v Permasolve Investments (Pty) Ltd (19457/2023) [2023] ZAWCHC 326. In this case, Bodies Under Construction was a high-end gym that had been renting premises from Permasolve for more than 10 years. Permasolve installed a generator on the premises which the gym used to continue to operate during load-shedding without any additional charges or levies. There was no agreement between the parties that additional charges or levies were payable for the use of the generator. The lease agreement between the parties held that the gym would pay an all-inclusive fee for all the expenses related to the lease of the premises. A few months after installation of the generator, Permasolve unexpectedly demanded the gym to pay an additional fee for the use of the generator, failing which they would disconnect the generator. The Court held that the gym’s use of the generator was so closely connected to the use of the premises as a whole that the gym had a quasi-possessionary right to use the generator.
The Court further held that Permasolve’s actions resulted in an unlawful disturbance of the gym’s use, and ultimate possession of the premises even though “possession” in this sense related to a non-physical thing – being electricity. The Court ordered Permasolve to reconnect the gym to the generator.
The essence of this matter is that a lessor generally cannot unilaterally charge for additional services or take away existing services without the lessee’s consent, unless there’s a provision in the lease agreement, or the parties reach an agreement through a later addendum to the lease which allows such changes.
It therefore remains prudent for both landlords and tenants to carefully review and understand the terms of their lease agreements, including any provisions relating to services provided, charges for additional services, and any conditions under which such services may be altered or discontinued.
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