Written for YourProperty

This week, two readers have asked the Property Poser panel for assistance with separate rental issues that stem from the lack of a written lease agreement.

The first reader wants to know what the recommended annual rental increase should be if there is not an agreement in place. She also mentions that she requested a written agreement from her landlord, but he is not obliging.

The second reader says that her landlord has refused to refund her deposit and maintains that he is not obligated as she provided him with a week’s notice instead of a month before moving out of the property.

Although a lease agreement does not have to be in writing to be legal and valid, a written document does help to provide clarity on a number of issues, says Schalk van der Merwe from Rawson Properties in Somerset West, Cape Town.

“These two questions highlight the numerous problems that can arise simply because no proper agreement was reached about the various aspects of a lease.”

While some of the basic components of a lease agreement revolve around identification of the parties and the property as well as the rental amount, Van der Merwe says there are many other aspects that should also be dealt with.

“With regard to the first reader’s problem, if there is no specific agreement on the topic, there is no general rule regarding the annual increase in rental.”

This is one of the provisions to be agreed upon, preferably in a written contract, says Van der Merwe.

“An oral agreement about increases, or any other provision for that matter, could be difficult to prove in case of a dispute.”

Van der Merwe says the reader did the right thing by requesting a written lease.

“The Rental Housing Act states that a rental agreement need not be in writing but that the landlord is obliged to reduce it to writing should he be requested to do so by the tenant.”

The Act also sets out the terms that are deemed to form part of the lease relating to aspects such as inspection of the premises, deposit and repayment thereof, says Van der Merwe.

“Although a little late, the reader could use the mechanisms provided under the Act to ensure that a written lease is supplied.”

A further important aspect dealt with in a written agreement is normally the notice period to be given for termination of a lease, says Grant Hill of Miller Bosman Le Roux Attorneys in Somerset West.

“Our second reader only gave a week’s notice but the landlord argues that she should have given a month’s notice.”

The added consequence, says Hill, is that the landlord is in turn not willing to refund the deposit paid by the reader.

“Had the parties concluded a written lease agreement, this misunderstanding could have been avoided.”

Hill says the Act provides that the landlord may apply the deposit “towards the payment of all amounts for which the tenant is liable under the lease”.

Similarly, but in an instance where no notice is given, the lease is deemed to expire when the landlord discovers that the tenant has vacated but he retains his rights to claim damages for breach of the lease, says Hill.

“Our reader feels justified in having vacated the premises as she had a good reason, in her opinion, to do so, although the reason had nothing to do with the premises or the landlord.”

In the absence of a clearer understanding of the terms and conditions of the agreement, both parties may feel unjustly treated by the other, says Hill.

“This is a consequence that could easily have been avoided by a well drafted and thought out lease agreement.”

To ask a property related question, click here.

Issued by:

Full Stop Communications

Coetzee Gouws
082 575 7991
041 368 4992

On behalf of:

Rawson Properties Helderberg & Miller Bosman Le Roux Attorneys