A reader has been advised by the estate agent that a mistake on a rental contract is to blame for raising the rental amount of a flat in advance of the date specified in the lease.
She says the flat is rented by her domestic worker, who is up to date with her payments and who has never had any issues with the landlord. The reader is questioning the legality of the scenario.
It is quite possible that the estate agent made a bona fide error in recording an incorrect date for the rental increase.
See the reader’s question here.
Typically, estate agents make use of templates or precedents when preparing lease agreements.
They merely amend them to reflect the details of the parties concerned and the specific provisions applicable.
With rental generally adjusted annually, it is straightforward to compare the date of inception of the lease with that of the proposed increase.
If they coincide, it is possible that the later date recorded in the contract was an error.
In the event of the agent seeking to rectify the contract to reflect the ‘correct’ position, he would have to prove that it is a so-called ‘iustus (fair or reasonable) error’.
If it is the agent’s mistake, the provisions will generally stand as they are.
South African case law contains many examples of mistakes due to a person’s own fault.
This can be the result of not reading the contract before conclusion or misinterpreting plainly understood provisions, all of which are generally incapable of court-sanctioned rectification.
In the case of this estate agent, the problem would be amplified by conditions in the Estate Agency Affairs Board‘s Code of Conduct.
This code states that an estate agent shall prior to signing explain to every party the meaning and consequences of the material provisions of any written offer or contract negotiated by him.
If the agent is unable to do so, he must refer the party to someone who can.
This provision demonstrates that it is the duty of the agent to go through the contract with the person concerned.
If this had been done with the domestic worker it would more than likely have highlighted the error.
Of greater concern is the possibility that the agent was attempting to perpetrate a fraud on the domestic worker, perhaps thinking she would not question the early increase.
An increase in the monthly rental could, depending on the estate agent’s mandate with the landlord, result in an increased commission or monthly fee.
If perpetrated en masse, it could result in a tidy monthly increase for the estate agent.
If this is the case, the reader, or her domestic worker, could consider reporting the matter to the Estate Agencies Affairs Board or police.
Assuming that the matter arose from a simple failure by the agent to comply with the provisions of the Code of Conduct in that he failed to go through the contract with the domestic worker or to check it properly, it will more than likely stand as is.
The increase will only be effected upon reaching the recorded date and the agent may have to make good on his error to the landlord for the loss in increased rental income.
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