A tenant wants to know what he can do about his verbal lease agreement, which he entered into in 2015, being disputed.
He says the property owner suffers from Alzheimer’s and therefore her daughter acted on her behalf.
The initial agreement was for the period from late-2015 to mid-2019 and rental was to be paid monthly. The reader paid an amount equal to two months’ rental as a deposit.
The daughter has now passed away and an attorney, acting on behalf of the owner, apparently instructed by her son, is disputing the validity of the lease.
In short, he is being asked to vacate the property.
See the reader’s question here.
The reader sub-lets a smaller property situated on the leased land to a third party and this arrangement is also being disputed.
The attorney advises that the rental paid by the sub-tenant is to be doubled with the money presumably to be paid to the owner and not the reader.
The authority of the son, now seemingly representing the estate of the owner, has not been addressed.
A lease agreement does not have to be in writing to be valid.
As long as certain valid elements have been agreed upon there is a contract between the parties.
These elements pertain to the identity of the parties and the property to be let, the term and the rental amount agreed upon.
Of course, in the event of a dispute between the parties, a verbal arrangement is much more difficult to prove.
However, it should be noted that under the Rental Housing Act the landlord is required to reduce the lease to writing.
In the reader’s instance there are a few aspects to be concerned about.
The first and most obvious is that the daughter, who allegedly represented her mother, has now passed away, which prevents him from seeking her confirmation as to the validity of the lease.
The other issue is whether she had the correct authority to represent her mother.
It is the reader who has indicated that the property owner suffers from Alzheimer’s.
He does not mention on what basis the daughter represented her mother and whether she had ever been appointed as a curator or administrator in respect of her mother’s estate.
Had the daughter acted on a power of attorney, it is important to keep in mind that such an authority is only valid for as long as the principal (the mother) is competent to act for herself.
At any time that the mother had become incapable of acting on her own behalf and therefore lost contractual capacity, the power of attorney would have automatically lapsed.
Again, this may be difficult to prove after the daughter’s death.
Practically, if the owner feels the tenant unlawfully inhabits the property, she or her representative would be entitled to start eviction proceedings in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act.
The act requires special consideration be given to, inter alia, the rights of elderly tenants (the reader is 70 years old) and sets out the procedure to be followed in the event of an alleged unlawful occupation.
The reader will then have an opportunity to present evidence as to why the occupation of the property is not unlawful.
The importance of having a lease agreement that properly sets out the terms between the landlord and tenant cannot be stressed enough.
The authority of the landlord or the person acting on behalf of the landlord is equally important.
In the majority of instances, such aspects may not result in any dispute or abbreviation of tenancy, but even a slight possibility should be enough of a motivator.
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