This week’s scenario presented to our Property Poser panel relates to the early cancellation of a lease by a landlady.
The tenant recently received a call from the person in question, who requested that she vacate the property as soon as possible to accommodate her daughter who was unexpectedly returning from overseas.
During the conversation the landlady, who realised that she was terminating the lease before the end of the term, offered to waive the last month’s rental.
The reader was obviously dissatisfied with the situation, but, after her landlady mentioned that another rental property might be available, agreed to investigate other options.
This option proved viable but when the reader confirmed that she would move, she was told that she would be liable for the rental after all.
Some of the reasons offered for this sudden change of heart included the fact that the landlady had not increased the rental for three years or insisted on a deposit.
The reader examined the lease agreement, which stated that it was subject to annual renewal with a 6% increase but that no deposit was payable. She would like to know what her rights and obligations are.
As in all contractual issues, the terms of the agreement are key in determining the parties’ rights and responsibilities, says Brian Kinnear, principal of Fresh Lifestyle Properties in East London.
“Provided, of course, that these terms aren’t contrary to the provisions of the Rental Housing Act. As we don’t have a copy of the agreement, we can merely speculate regarding possible clauses contained in it.”
Kinnear says important issues to consider include whether the landlady was entitled to cancel the agreement.
“From the information given, it appears that the lease was for a fixed term. Usually, someone would only be entitled to an early termination if the other party breaches the agreement or accedes to the request for cancellation.”
In this instance, says Kinnear, it would appear that the reader agreed to the landlady’s request once she obtained other accommodation, on the basis that she would not be liable for the last month’s rental.
“If the above is a true reflection of what occurred, then a valid agreement to alter the lease came into existence. The landlady cannot unilaterally change the terms by demanding payment.”
Grant Berndt from Abdo & Abdo Attorneys in East London says a general clause included in many contracts states that the failure to exercise one’s rights cannot be construed as a waiver and thus does not change the terms of the agreement.
“However, if the landlady didn’t object to the reader’s lower payment on the date of increase, then the more likely interpretation of the situation would be that the parties tacitly agreed to continue with the lower rental.”
Berndt says such a tacit alteration to the lease would be just as binding as a verbal or written agreement.
“Regarding the deposit, if the lease didn’t require one then the landlady cannot use this excuse to motivate her demand for the final instalment.”
According to Berndt, it would therefore appear that the reader has grounds for refusing payment.
“However, if she is still uncertain, it would be wise to consult with an attorney, who will be able to advise her based on the exact terms of her lease, both written and verbal, while taking into account her rights as contained in the Act.”
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