Verbal lease agreement creates a problem

After entering into a verbal agreement with her landlord, a reader is in disagreement with him about certain payments and wants to know how she can resolve the issue.

 In accordance with the arrangement, she says she is obliged to pay rental and a contribution to water and lights.

 She also says she has, on numerous occasions, requested the landlord to provide her with a copy of the water and lights statement.

 In response he merely gave her a portion thereof that confirmed the full balance outstanding.

 After obtaining a proper copy with full details from the municipality she realised that, comparing the amounts she had historically paid, she had not only been paying her portion of the water and lights but also the rates on the property.

Accordingly, our reader, as the tenant, advised the landlord that she was only prepared to pay her portion of the water and lights as per their original agreement.

 In response, the landlord advised our reader that she must vacate the property.

 Furthermore, she says the landlord now also requires her to sign a written agreement of lease if she stayed on.

 She says she has no issue with signing a lease agreement except that the lease provided to her is extremely one-sided in favour of the landlord.

 Schalk van der Merwe from Rawson Properties in Somerset West says they have often cautioned clients about entering into a verbal agreement of lease to avoid misunderstandings or misinterpretations.

 “In this instance, it is quite possible that there is no misunderstanding as to the portion to be paid by our reader and that the landlord has been ‘pulling the wool over her eyes’ for his own benefit,” he says.

 “It is equally possible, however, that the original agreement included payment of the rates by the tenant.”

 He says this, in itself, is not unusual and may merely form part of the overall rental amount payable by a tenant to a landlord.

 Van der Merwe adds that the reader is fully within her rights to ask for a written receipt from the landlord for payments made and for such receipts to indicate the purpose for which payment was made.

 “Section 4A (8) of the Rental Housing Act specifically says a tenant is liable for rental and other costs agreed upon in the lease on the due date.

 “But for costs other than those agreed to in the lease, the tenant is only liable upon proof of factual expenditure by the landlord.”

 In addition, he says the act states that the amount of any other charges payable, in addition to the rental, must be identified in the lease.

 Van der Merwe adds that this information must be included in an agreement of lease, which the act requires the landlord to put in writing.

 Grant Hill of Miller Bosman Le Roux Attorneys in Somerset West says it would appear, however, that although the landlord has provided notification of termination of the lease, his intention is now to enter into a new written agreement.

 “The reader has not indicated what original term was agreed on with the landlord, but it is fairly likely that it was concluded on a month to month basis.

 “It would appear that the landlord intends to cancel the original lease and to substitute those terms with the new proposed terms in the new lease,” he says.

 “Our reader would have to take further advice, depending on the circumstances, to establish whether the original verbal agreement of lease was effectively cancelled.”

 He adds that the act requires the lease already entered into between landlord and tenant to be reduced to writing.

 “The intention is thus to merely record the terms that have already been agreed upon, not to substantially alter the agreement after the conclusion of the verbal agreement.”

 Hill says in accordance with the regulations to the act, certain provisions may not be included in a lease agreement.

 “Potentially problematic in this instance, however, is a regulation that says if a tenant does not sign a written lease agreement, acceptance of possession of the dwelling and payment of rent gives the lease agreement the same effect as if it had been signed and delivered to the tenant.”

 He adds that the reader could argue that the conduct of the landlord is oppressive or unreasonable and is merely designed to substitute the originally agreed provisions of the lease.

 The matter could, if a substantial case is made, be referred for resolution to the tribunal established in accordance with the act.