A client asked me: “If a tenant is forced to live in intolerable conditions and is forced to move, is it the tenant’s right to cancel an extended lease?”

The Nature of a Lease Agreement

• The subject matter of a lease agreement is the use and enjoyment of the property leased, during the period agreed upon.

• The rental determined in a lease agreement is in fact the consideration (quid pro quo) which the tenant agrees to pay the landlord for the use and enjoyment of the leased property.

The Landlord’s Duty to Deliver and Maintain the Property in a Proper Condition

• The landlord’s primary duty is to deliver the leased property in a proper condition, in the sense that it must be placed at the disposal of the tenant for his or her undisturbed use and enjoyment, after which it must be maintained in such condition, so that it will remain reasonably suitable for the purpose for which it was let throughout the currency of the lease.

• The landlord has a duty of placing and maintaining the leased premises in a condition reasonably fit for the purpose for which they are let … The principle is that the tenant is entitled to the due use of the thing which he has leased, and he cannot enjoy that use unless the property is delivered and maintained in a state of repair which is reasonable under the circumstances.

If the landlord violates health and safety codes that create intolerable living conditions for a tenant this amounts to a “constructive eviction.”

The tenant should demand that the landlord restore the leased premises to a proper condition. If the landlord fails to do so, in my opinion, this would be a ground for cancelling the lease.

Of course, the tenant has the right to cancel the lease at any time (on 20 business days’ notice) in terms of the Consumer Protection Act (subject to payment of a reasonable penalty) for premature cancellation.