The contract of a private residential lease : freedom of contract versus rent control

Abstract

The field of private residential leases can be compared to a pendulum swing whereby the legislative interventions in the sector have oscillated back and forth between the harshest of rent control provisions to the almost unlimited contractual freedom. Act XXXI of 1995 brought about such freedom after prolonged years of heavy restrictions with Act X of 2009 setting out the framework. The law laid out a very basic structure. The act obligated the parties to agree on 5 main clauses and then continued to state the rights and obligations of both the lessor and the lessee unless agreed otherwise. The framework was very minimalistic, especially so since most of the articles are of a jus dispositivum nature. The change in lifestyle created a need for newer laws which reflected the realities of today, and thus the PRLA which took force on the 1st of January 2020 sought out to cater for such changes. Our parliaments have always found it difficult to achieve a balance between the contracting parties since, on the one hand, one should be afforded his contractual freedom thus agree his own terms. On the other, intervention may also be necessary in order to ensure standards and fairness. The scope of this research project is to analyse certain key issues in this field, to compare systems which provide complete contractual freedom with ones with rent control provisions and establish a way forward.