A reader wants to know what can be done about money owed by a tenant who failed to pay his rent for five months while also running up municipal debts.
She concluded a lease approximately two years ago and he settled his rental haphazardly, paying part of it one month and nothing the next. During this time, he had managed to run up a municipal bill in excess of R150 000.
The reader discovered that the tenant had vacated the property after she failed to receive rental for five months.
The house, which has a potential buyer, was owned by the reader’s late husband and fell under his estate during this period.
See the reader’s question here.
The lease agreement concluded between the reader and her tenant is flimsy at best.
It amounts to nothing more than a single line stating that the house, at a certain address, is rented to the tenant for a certain rental on a month-to-month basis.
It adds that should the tenant default on his rental, the reader can give notice that he must vacate the property.
No other terms that one might expect in a lease were included.
It seems the reader was not particularly interested in overseeing and administering the leased property – yet she is under an obligation to do so.
As the executor of her late husband’s estate, the Administration of Estates Act provides that immediately after letters of executorship have been granted an executor shall take under his control all the property, books and documents in the estate.
These must not remain in the possession of any person who claims to be entitled to retain it under any contract, right of retention or attachment.
The reader has a further interest in the property in that she is an heir in the estate and stands to benefit directly from rental income and its sale.
Upon discovering that the tenant had vacated the property, the next discovery was that the tenant had failed to pay municipal services.
The so-called lease agreement did not specify who was responsible for the payment of municipal and other expenses.
It appears the reader believes it was the duty of the tenant to do so as she considered taking legal steps to recover the outstanding amounts.
This was because the settlement of the municipal account was required to be able to sell the property and to pass transfer.
The tenant can possibly raise a waiver by our reader as a defence to a claim for payment in that his frequent late or non-payments were overlooked and accepted by her throughout.
With the lease being silent on additional expenses he might claim that he was simply not liable.
The Rental Housing Act requires the parties to address in their written agreement the amount of any other charges payable in addition to the rental.
According to the reader, there is a potential buyer of the property who is keen to purchase it in instalments – in which case certain provisions of the Alienation of Land Act will apply.
Section six of this legislation is quite specific as to the terms of the agreement to be addressed and agreed.
It is not ideal, however, in this instance that the property be sold in instalments as it may prevent the finalisation of the administration of the estate pending transfer.
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