Starting A Tenancy, Get Professional Help

The smooth execution of a tenancy largely depends on the tone and mood prevail­ing amongst the parties, i.e. the landlord and tenant and their ne­gotiations from the start. It is
12 Jan 2019 10:35
Starting A Tenancy, Get Professional Help

The smooth execution of a tenancy largely depends on the tone and mood prevail­ing amongst the parties, i.e. the landlord and tenant and their ne­gotiations from the start.

It is often noted that both parties fail to take this opportunity seri­ously and at times act in haste out of desperation or apathy to enter into a tenancy on unconfirmed or uncertain terms.

During the negotiation stage, the focus of the landlord and tenant’s discussion should be directed mainly towards the following:

  • the rental amount to be paid;
  • duration of tenancy;
  • due dates and mode of rent payments;
  • dos and don’ts in the tenancy;
  • termination clause;
  • rights and liabilities;
  • remedial provisions -etc

Some issues are often overlooked during negotiation stage; a risk that can potentially become the cause of friction or discontent later on.

These may include:

  • allowable number of visitors;
  • keeping pets in the premises;
  • Apportioning bills in a shar­ing arrangement.

Taking such factors into consid­eration, it is important for both parties to treat the initial nego­tiation very seriously and accord sufficient time and attention to the process to avoid any possible causes of regrets later.

To summarise the process of starting a tenancy, it is recom­mended to follow the steps listed in the order as follows-

  1. Advertising of the property for rent;
  2. Connecting the parties;

III. Inspection of the property and making a condition report;

  1. Mutual agreement to engage;
  2. Negotiation on the terms and conditions of the tenancy;
  3. Documentation and registra­tion of the agreement;

VII. Payment of advance payable fees, bonds, deposits and other charges;

VIII. Handover of key(s) and moving in.

The Fijian Competition and Con­sumer Commission (FCCC), based on its rent control and consumer protection mandate under the Fi­jian Competition and Consumer Commission Act 2010 (FCCC Act 2010), has been inundated with complaints from tenants and landlords which reflect the very facts highlighted above.

For instance, if a tenant en­counters difficulty and is unable to pay rent on the date stated in the agreement, the landlord tends to become frustrated to the point that he starts to create discomfort for the tenant.

The landlord may indulge in ac­tions such as disconnecting utili­ties and exerting pressure on the tenant to enforce vacation of the property.

Such actions are unacceptable especially when both are entitled by law to terminate a tenancy by way of written notice from the terminator to the other party dur­ing instances of breach of agree­ment or the parties not being on good terms with one another. Since such factors are not clearly spelt out in the tenancy agree­ment, remedial actions are often pursued based on erroneous in­terpretations and understanding of the law.

Advice before acceptance

The FCCC wishes to remind land­lords and tenants on the advices already disseminated in the past, to seek expert advice before com­mitting to an agreement or deal, should any uncertainty arise.

Such advice can be technical, le­gal or basic administration in na­ture that a landlord or tenant rely upon to make informed decisions.

The FCCC has come across in­stances where tenants get en­tangled with landlords and their agents due to lack of knowledge on their rights and liabilities in a tenancy.

In such circumstances, tenants suffer financial loss and frustra­tion that often deprives them from their quiet enjoyment of the property according to law.

On the other hand, some land­lords have encountered challeng­ing situation against their ten­ants due to inadequate terms and conditions in the tenancy agree­ments that stipulated remedies of breaches and defaults.

This can only be resolved if the parties had taken the time to seek expert advices before docu­menting and signing the tenancy agreement.

Whilst renting would continue to be an ongoing business in Fiji, it is important for landlords and tenants to get professional advice prior to drafting and finalising a tenancy agreement.

It is equally important for both to have a basic understanding of the property contract including their rights and responsibilities and remedies contained therein.

Negotiate before you Pay

A payment in a tenancy agree­ment should only be done after the signing and sealing process, including registration being com­pleted.

If payments are done prior to the finalisation of the agreement, both parties are exposed to risks that can become a cause of regret later on.

From a tenants’ perspective, pay­ment of bond and advance rent should only be made after the agreement has been signed, the condition of the property meets the expectation and bills are clear.

On the other hand, the landlord should only accept payment from a tenant, after the agreement is finalised, properly sealed and reg­istered.

Furthermore, the landlord must ensure that the tenant under­stands clearly the terms and con­ditions of the agreement.

Any uncertainty or doubt should be cleared before any payment is made or accepted and receipted accordingly thereafter.

Importance of documentation

The parties to a tenancy must always remember that whatever communication transpired dur­ing the negotiation can only be believed or capable to be believed if captured in writing.

All future undertakings agreed to at the start is of no value if not properly documented and signed.

Otherwise, it becomes hearsay information that lacks the stand­ard of evidentiary validity.

Photos and other modes of cap­turing a moment is also very handy as writing may not de­scribe it adequately and to the point.

‘Sticky’ issues such as the state of the property including the bills should be documented to for fu­ture comparison purpose.

To ensure transparency of the documentation process, both par­ties must be provided a copy each to keep, as reference.

Any amendments or deletions to be made thereafter must be re­flected on both copies kept.


Fiji Sun Instagram
Fiji Plus