Written for Property Poser
A reader who rents out her sectional title unit has asked the Property Poser panel for assistance in dealing with a negligent letting agent.
The landlady has been less than happy with the agent’s performance in the execution of his duties and complains that he often fails to carry out his duties timeously or even at all.
By way of example, the reader explains that he does not pay the levies for the unit to the body corporate on time, nor does he pay over the reader’s portion of the rental at the agreed times.
The agent also refuses to inspect the unit when the tenant moves out.
These are all fairly basic requirements, considering that the reader’s agreement with him appears to be quite comprehensive, says Schalk van der Merwe from Rawson Properties in Somerset West, Cape Town.
“The agent sources and places tenants and sees to all the other aspects of the lease and the like.”
Van der Merwe says the reader also adds that she is not even aware when a tenant is about to vacate the premises.
“It seems that she has a written contract in place that binds her to the agent but it will expire in due course.”
The reader would like to know what she should consider including in the new contract so as to ensure that the agent carries out the agreed duties.
“In the interim, our reader should take a careful look at the clauses of the current agreement as it may well include a clause or reference to breach.”
Often, the breach clause makes provision for a party to put the breaching party on notice and to require performance within a specified period of time, says Van der Merwe.
“Failure to do so could result in a remedy like cancellation, with or without the option to claim damages, being available to the reader.”
Van der Merwe says the existing contract may also include a right of cancellation on notice, without employing a breach scenario.
“It would enable the reader to merely cancel the contract by advising the agent in the manner laid down.”
If the time for the contract to expire is imminent, however, it may serve no real purpose to seek to cancel, says Grant Hill of Miller Bosman Le Roux Attorneys in Somerset West.
“Regarding a new contract, which could also be concluded with a new agent, the reader should consider various aspects to provide her with some protection.”
Hill says the period of the contract could be concluded for a shorter timeframe but with the option to renew.
“This will allow her some time to assess the agent and then renew the contract should she be happy to do so.”
The duties of the agent should be clearly stated so as to remove all doubt as to what he must do on a regular or ad hoc basis, says Hill.
“Where the agent must carry out inspections and the like, it could be agreed that he must fulfil all the obligations of the landlord as far as any statutory requirements are concerned.”
Hill says the contract could even list the precise duties required, as covered under the Rental Housing Act.
“Particularly important duties could be recorded as being material to the contract.”
These could be associated with a more extreme right of termination, one without notice, says Hill.
“One could also make provision for incurring penalties for transgressions such as the late payment of the reader’s portion of the rental.”
Hill says this would typically take the form of a punitive amount of money, which would have to be realistic and possibly calculated on a daily basis.
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On behalf of:
Rawson Properties Helderberg & Miller Bosman Le Roux Attorneys