A reader who accepted a new, higher rental for a flat he has been renting for three years wants to know his rights after being given notice a few days later because the property was promised to a neighbouring tenant.
The reader says he has never been behind with his monthly payments and maintained the property.
Before the end of one month he received an e-mail from the landlord’s agent setting out an escalation to the monthly rental for the next rental period.
The reader reacted quickly by way of a return e-mail, saying he accepted the new conditions.
See the reader’s question here.
Three days later he received correspondence from the agent giving him two months’ notice because of a promise the landlord had made to his neighbour a month previously.
The lease agreement should be examined to determine the manner in which a renewal is to be effected.
As is often the case, it is quite possible that all that was required for the renewal to be concluded was for the parties to agree on the rental payable for the new term.
That seems to be the case in this scenario and the fact that our reader has already rented the premises for the previous three years supports this position.
A duly authorised agent of a landlord can enter or renew a lease with a tenant on his behalf.
Thus, in the event of the landlord wishing to refute an effective renewal based on a third party concluding the lease, the reader could argue that the agent was mandated to act on behalf of the landlord.
If representation is not an issue, a further argument that the agent or landlord might try to rely on is that the renewal was not properly effected.
Agreements often prescribe that any amendments, renewals or addenda are required to be in writing and signed by the parties to be effective.
Assuming that the material requirements for a renewal were met in the e-mail exchanges between the agent and our reader, it is possible that those exchanges could constitute compliance with the contractual formalities.
The legislation applicable in this regard is the Electronic Communications and Transactions Act.
In the Supreme Court of Appeal matter of Spring Forest Trading 599 CC and Wilberry (Pty) Ltd the court was asked to determine whether a contractual clause, which stated it should be cancelled in writing and signed by the parties, was validly effected by way of e-mail.
That matter turned, to some extent, on the interpretation and application of section 13.
This states that where an electronic signature is required for an electronic transaction, and the parties have not agreed on the type of electronic signature, that requirement is met by a data message if it complies with two elements.
The first is that a method is used to identify the person and indicate the person’s approval of the information communicated.
Secondly it must have regard to all the relevant circumstances at the time the method was used and be reliable and appropriate for the purposes.
This should be considered in accordance with section 12, which states a document meets the legal requirements if it is in the form of a data message and accessible for subsequent reference.
The court accepted that the e-mails constituted cancellation in writing and that the type-written names of the parties at the foot of the e-mails constituted an electronic signature.
The reader should thus determine whether or not the exchange of e-mails allowed for the renewal and related provisions.
If so, the e-mails themselves should be examined to determine whether the content constituted a sufficient intention of the parties to renew the lease.
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