Residential Guidebook Homeowners Guide 2016 | Page 15

LETTING Tenant Insolvency If properties are sub-let, the lease can be cancelled if the tenant declares insolvency T here are cases that differ from commercial property management to residential letting, in that there tends to be more sub-leases in commercial property than in residential rentals. It often happens that one company will rent a whole building and then sub-let portions of the space they have signed for. It must be remembered in these cases that the entity responsible for the rent is the company that signed the original lease with the landlord. But what happens in cases where the company holding the lease goes bankrupt? Most commercial leases will be held by a juristic person (a company or a close corporation). If the company were to go under, the liquidator steps in and performs the duties of the tenant, and must collect rent from sublets as well as paying rental to the landlord. If the business going under applies for business rescue, then they will be protected and have time to unwind to sort out their financial problems. This can include cancelling the lease. What many landlords don’t realise is that, if the liquidator cancels the lease, the landlord joins the line of creditors with concurrent claims against the first tenant for the loss in rent. However, if the lease stays in place, then www.reimag.co.za all rights and obligations regarding that lease, and the insolvent tenant stay in place. Furthermore, the landlord cannot force the liquidator to fulfil the contractual obligations of the lease, such as paying the rent or maintaining the property. The landlord cannot force the liquidator to fulfil the contractual obligations of the lease, such as paying the rent or maintaining the property It makes sense then that the liquidator will cancel the lease, as this reduces the burden on the liquidator to get payments out to the creditors. The sub-tenant does not have any more rights to the property than the tenant and in cases where the main tenant is declared insolvent, the lease can be cancelled with no repercussions on either the landlord or liquidator’s part. Once the main lease is cancelled, so too, is the subtenant’s lease. Residential E-Book 2016 13