A reader who has rented a property from his son for seven years without any default in payments has been given notice and wants to know what his options are in this situation.
Initially the father rented the property from a third party before his son purchased it.
However, the son was unable to pay the full deposit and the reader loaned him R100 000 so he could settle the required amount.
Although the situation appears to be fairly straightforward, many problems can arise in these circumstances.
See the reader’s question here.
The problems are potentially made trickier due to the fact that family is involved.
Often in a family situation the parties do not take the sensible step of ensuring that formal written agreements are put in place.
These could be prepared by an attorney to ensure that the intention of the parties at the time of the agreements is properly recorded and that the contracts are valid.
The arrangement between father and son is not clear, but it would appear that the former is surprised his son is able to give him notice in the first instance.
This suggests that the possible intention of the parties at the time of them effecting the various transactions was for the reader to remain in occupation as a tenant for an indefinite period.
As he still pays a monthly rental, the loan was possibly intended to serve as a form of assurance that his rights as tenant would be secured.
Due to being given notice, it seems the reader is claiming repayment of the loan.
However, this claim may not be valid due to the time which has elapsed since its inception.
The Prescription Act provides for a claim to be lodged within a period of three years in circumstances other than those listed in section 11.
This period begins to run as soon as debt is due, with it prescribing (lapsing) after three years.
The reader will have to cast his mind back to try to remember the discussed terms or to check any written agreements they may have concluded.
In terms of the notice given, the parties’ agreement as to how the period of the lease is structured should be considered.
For certain, parties will often agree to fixed periods and such leases are normally renewed on a regular basis.
The renewal may sometimes include an increase in the monthly rental and touch on other aspects of the agreement.
The possible problem in this instance is that, as the parties are related, they may not have entered into an agreement of lease, instead relying on the bone fides of each party.
If there is nothing to the contrary permitting the son to terminate the agreement, the reader will be in the position of a regular tenant.
This may result in the usual process applying, such as eviction, should he refuse to vacate the premises voluntarily.
This situation demonstrates the necessity for parties, especially when they are related, to ensure that their agreement is properly recorded to avoid any family disputes.
If the reader has concluded agreements in respect of the various transactions it may be prudent for him to take legal advice as to his current rights.
This may result in him not having to vacate the property.
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