Smoking on the premises

Smoking on the premises

A dope story you need to know

BY CILNA STEYN

Recently the Constitutional Court had the entire South Africa, either very excited or up in arms, with the decriminalization 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.

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.

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