In view of the uncertain times, we understand that both landlords and tenants alike have many questions regarding the rights and obligations under their respective tenancy agreements. This article aims to address the following frequently asked questions on this burning issue:
Frequently asked questions
1. Does Covid-19 or the MCO affect the validity of my tenancy agreement?
Your tenancy agreement is still valid unless Covid-19 or the MCO has made it impossible for you to carry out your respective obligations under the agreement. It is important for you to examine whether your tenancy agreement contains a force majeure clause which entitles you to suspend or terminate the tenancy agreement due to Covid-19 or the MCO.
2. What is a force majeure clause?
A force majeure clause is a contractual term whereby parties set out the unforeseeable events which may excuse one (or both) of the parties from the performance of a contract, in whole or in part. These unforeseeable events are usually beyond the control of both parties.
There are various types of force majeure clauses. The effect of such clauses will depend on the scope of the unforeseeable events contemplated by the parties. It is important to note that a force majeure clause can only be invoked and relied upon if it has been expressly provided for in the tenancy agreement. The burden of proof lies on the party wishing to invoke the clause.
The following is an example of a force majeure clause:
“An event of force majeure is an event or circumstance which is beyond the control and without the fault or negligence of the party affected and which by the exercise of reasonable diligence the party affected was unable to comply with any of its obligations under this contract provided that the said event or circumstance is limited to the following:
(a) earthquakes, drought, tidal waves and floods, fire or other physical natural disaster; and
(b) riot, war, invasion, hostilities (whether war be declared or not) acts of terrorism, civil war, revolution, insurrection of military or usurped power, requisition or compulsory acquisition by any governmental or competent authority.”
3. There is a force majeure clause in my tenancy agreement. Can I rely on it?
Whether you can rely on the force majeure clause depends on the wordings of the force majeure clause and the nature of your tenancy agreement. If your tenancy agreement contains a force majeure clause which expressly provides for circumstances such as “pandemic”, “disease”, “global health emergency” or “lockout” as force majeure events, the COVID-19 pandemic would arguably fall within the scope of the clause.