CAN A TENANT SUSPEND PAYMENT OF RENT CLAIMING COVID-19 A FORCE MAJEURE?

Can a tenant suspend the payment of rent claiming that the Covid-19 gives rise to a force majeure event?

The tenant cannot unilaterally do so, unless contractually agreed in the lease agreement. The position would depend on whether provisions about co-tenancy have been made in the lease agreement.  

If the contract has provided for suspension of payments, e.g. as a result of a curfew or lockdown ordered by Government to prevent the spread of
Covid-19, the tenant can avail itself of that clause. In the absence of such a clause, the tenant can rely on force majeure as a concept under the Civil
Code but would have to prove that the curfew/lockdown is something that was unforeseeable and irresistible which has prevented it from paying the
rent; it may be difficult to establish that in respect of a payment obligation however.

With the world leaders meeting, discussing, and finding ways to ease the population back into the workforce and active life, there has been important amendements made to 56 laws in Mauritius.

Concerning the real estate sector, article 30 of the COVID-19 law (Miscellaneous provisions) relates to amendments to the law governing the rental of property (Landlord & Tenant Act) listed below, and granting a six-month moratorium on payment rent for those renting professional, commercial and residential premises. The objective is to allow those who could not or cannot pay their rent during the sanitary curfew period, until the end of August 2020, to do so through a rescheduling formula to be mutually agreed between tenant and owner. Unpaid rents between March and August 2020 may be staggered between September 2020 and December 2021 in installments. Such an arrangement will therefore not constitute a violation of the rental contract between the tenant and the owner. No eviction order will therefore be authorized for unpaid rents for the months prescribed (March to August 2020) in the legislation.

Landlord and Tenant Act amended

The Landlord and Tenant Act is amended -
(a) in section 3, by inserting, after subsection (2), the following new subsection -
(2A) Notwithstanding any other enactment or any other agreement, non-payment of rent in respect of premises for the months of March 2020, April 2020, May 2020, June 2020, July 2020, August 2020 and such other subsequent month as may be prescribed shall not constitute a breach of a tenancy agreement, provided that the rent for the months of March 2020, April 2020, May 2020, June 2020, July 2020, August 2020 and such other subsequent month as may be prescribed is fully paid, in instalments, by 31 December 2021 or such other date as may be prescribed.

(b) in section 17 -
(i) by renumbering the existing provision as subsection (1); and
(ii) by adding the following new subsection -
(2) Notwithstanding subsection (1), the Court shall not make an order under section 16 where rent has not been paid by a tenant for the months of March 2020, April 2020, May 2020, June 2020, July 2020, August 2020 and such other subsequent month as may be prescribed, provided that the rent for the months of March 2020, April 2020, May 2020, June 2020, July 2020, August 2020 and such other subsequent month as may be prescribed is fully paid, in instalments, by 31 December 2021 or such other date as may be prescribed.