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Home arrow Blog arrow How to Identify a Bad Residential Lease Agreement
How to Identify a Bad Residential Lease Agreement

As I mentioned before, a residential lease agreement is not the same as a commercial or industrial lease agreement.

This is very important to understand before anyone even tries to identify the differences between a bad lease agreement and a good one.

Once that understanding is clear one has to look at the fact that the Rental Housing Act 50 of 1999 is the act which governs relationships between a landlord and a residential tenant.

So, is that it? No. That is only the beginning. The next factor is the consideration of Regulations and here comes the trick.

The regulation are created by each province and may change from time to time, as opposed to the act which may have amendments such the recent ones, but they come about only once in many years (Rental Housing Act 50 of 1999 Ammendments ).

The regulations are a good as law and the act. The regulations theoretically will never contravene the act but are only in addition to the act and have to be obeyed as law.

So, it stands to reason that if a residential lease agreement complies with the act and the provincial regulations all is good. Right?

Wrong. That is not the case. Because everything that in not included neither in the act, nor in the regulations falls under common law and herein lie the second trick.

Bottom line how do you indentify a good lease agreement:

1.    It must not contravene the Rental Housing Act 50 of 1999.

2.    It must not contravene the Provincial Regulations.

3.    It must agree upon/ change things in common law as to the extent that  is needed for both parties intent to be reflected.

So, can you now identify a good lease agreement? In essence if you are not a lawyer or well versed in the Rental Housing Act, Regulation and Common Law, then it would be very difficult for you to know.

That said, because point 1 and 2 are the most important and maybe less extensive than understanding common law (which anyway can be changed via agreement between parties), it is important maybe to read and understand these and make sure nothing contravenes these two, because otherwise the lease agreement, if not drafted correctly may be found null and void. That is the worse case scenario.

To make this a bit more clear. If anything in the lease contravenes the Act or Regulations, it is not a good lease. But if it contravenes commons law, then that is an agreement made to change common law and that is ok (that is generally speaking of course).

In my humble opinion, one should send a residential lease agreement to be checked by a legal person if one is not very knowledgeable in these things.


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Copyright (C) 2007 Alain Georgette / Copyright (C) 2006 Frantisek Hliva. All rights reserved.

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