Written for Property Poser

This week’s Property Poser reader question relates to two tenants who each rented one room in a three-bedroom flat.

They signed a contract for a year and the amount was stipulated as follows: “Rental per month R5 500 (R1 833.34 per room)”. The agent found a third tenant for the remaining bedroom.

After several months, the third tenant left and the agent claimed that the first two tenants were responsible for the rental of the third bedroom.

Their contracts contain clauses allowing the agent to recover money from them should either party default on payments and they queried why this route was not followed with the third tenant?

They were told that the third tenant had not signed a contract and that they were being held responsible in terms of a mutual responsibility clause in their contracts.

Our reader wants to know how this clause should be interpreted?

Sonet Pieterse from Sonet Pieterse Attorneys & Conveyancers in Port Elizabeth says the Rental Housing Act 50 of 1999 regulates the relationship between a landlord and a tenant of residential property.

She says the relationship is also governed by common law and the terms of the lease agreement.

“If separate units in one property are let to various tenants in terms of separate leases, it may be possible that some of the contracts are in writing and others verbal. It is also possible to conclude one agreement with various tenants.”

Pieterse says if the lease agreement makes provision for joint and several liability, they may each be held liable for the other’s obligations.

“In our reader’s case, it appears that one contract was prepared for the first two tenants, in terms of which they assumed joint and several responsibility. The agent, on behalf of the landlord, thereafter entered into a separate, apparently verbal, lease agreement with the third tenant.”

According to Pieterse, the reader and the co-signatory of the written lease agreement will not be jointly and severally liable with the third tenant due to the fact that there were separate agreements. “They would only be liable with each other.”

She says as the monthly rental is indicated as R5 500, it will be the amount for which the reader and his co-tenant would be liable.

“Even though the rental per room is indicated in brackets, it cannot necessarily be inferred that each tenant would only be responsible for the rental for a particular room,” says Pieterse.

Ed Slater from Rawson Properties PE says if the reader and his co-tenant had only paid a rental equivalent to the amount for two rooms and the landlord had accepted this, the reader may rely on this fact in support of a claim that the agreement contains an error with regard to the amount of the rental.

“The reader may also argue that the parties had, subsequent to the signing of the lease, tacitly agreed to amend the agreement to the amount actually paid,” says Slater. “This tacit agreement could be proven by the fact that a lower rental was tendered by the reader and the co-tenant and that the landlord had accepted it.

“Should it appear that the reader and his co-tenant are liable for the full rental, then the question that begs to be asked is whether the landlord had the right to lease out the third room,” says Slater.

“One could argue that they had leased the whole flat and that they were therefore the only persons allowed to sublet the third room, provided that the agreement did not prohibit subletting.”

Slater says if the reader cannot afford an attorney, he can refer the matter to the Rental Housing Tribunal.

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