Real Estate Investor Magazine South Africa December/ January 2018/2019 | Page 34

PROPERTY MANAGEMENT
Smoking on
the premises
A dope story you need to know
BY CILNA STEYN
R
ecently the Constitutional Court had the entire South
Africa, either very excited or up in arms, with the de-
criminalization of the use of cannabis in a private place.
First off it is crucial to make it very clear that this judgement
did not legalise cannabis, it has only been decriminalised for
personal use. What is the effect of the order on landlords and
tenants?
This order does not supersede the lease agreement, parties
to an agreement can agree to very specific things, for instance
the parties can agree that smoking is not allowed on the
premises. Very much like it is not illegal to keep pets, yet
parties to a lease agreement can agree that pets may not be
kept on the premises. Since the order was handed down
we have seen many cases where the lease agreement specify
that the tenant may not smoke on the premises, for instance,
inside the premises or on a balcony, so the tenant was happy
with not smoking cigarettes in those areas. But many tenants
misinterpreted the order from the Constitutional Court and
believes that they are allowed to smoke cannabis anywhere,
regardless of what the lease agreement determines.
It is important to understand the difference between doing
something illegal and being in breach of a contract. A tenant
can, for instance run a brothel from the leased premises, which
is illegal, but if the lease agreement does not specify that the
tenant must comply with laws and by-laws, then the tenant
is, in fact committing a crime but is not in breach of contract.
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DECEMBER 2018/JANUARY 2019 SA Real Estate Investor Magazine
We can also turn this example around, for instance, the
tenant agrees to not smoke on the premises and then does,
his actions are then not illegal, but it is breach of contract.
For this reason, it is very important to thoroughly read your
lease agreement and ensure that criminal activities will also
be breach of contract to allow the landlord to cancel the
agreement in cases where the tenant is using your premises
to commit crimes.
Equally important, ensure that the lease agreement actually
contains all the terms that are really important to the landlord.
The property might have a very special garden, if the lease
agreement does not state that the tenant is obliged to maintain
the garden, the landlord will not even be able to claim damages
from the tenant even if the garden is completely destroyed.
Legislation will always supersede any agreement, in other
words if something is prohibited or compelled by legislation,
an act then the parties cannot agree to the contrary, but
everything else is regulated by the agreement, and by the
agreement only.
In summary; if the lease agreement allows smoking, or is
silent on smoking on the premises, then the tenant is more
that welcome to light up, even a joint. However, if the lease
agreement disallows smoking, in which ever form then the
tenant is not allowed to smoke anything on the premises, not
even a zero-nicotine vaporiser.