The Property Poser panel helps a tenant this week whose advance rental payments have not been paid over following a change in ownership of the property.
The reader explains that she rented a residential property and, for some reason, landed up paying four months rental in advance to the landlord and owner.
Although she was unaware of it at the time of payment, the landlord had already sold the property to a new purchaser. The transfer of ownership and, by implication, change of landlord also took place during this time.
The reader is aware of the “huur gaat voor koop” legal principle, says Susan Chapman from Rawson Properties Port Elizabeth Platinum.
“This principle provides for the continuation of an existing lease despite the sale and transfer of ownership of the fixed property. This means that the new owner becomes the landlord and takes over the lease.”
According to the reader, her problem is not that the new landlord is refusing to acknowledge the existence or terms of her lease but rather that he is insisting that she pay her rental.
Chapman says he seems not to have received it from the old landlord and appears to be of the opinion that the problem is hers rather than his.
“If we consider the nature of the transaction, one should take into account that ownership of the property would have been transferred as a result of a contract.”
The contract may have made provision for certain aspects regarding the existing tenant but this is not relevant as she was clearly not a party to it, says Chapman.
“The identity of the landlord would, most likely, have changed as a result of the cession or assignment of the lease agreement between the reader and previous owner.”
Stiaan Jonker of Smith Tabata Attorneys in PE says the new owner takes over the rights and obligations of the old landlord and, in essence, steps into his shoes.
“As far as the tenant is concerned, nothing has changed. The lease, and thus its provisions, remains intact and effective.”
If one applies this concept to the payment of rental in advance, the tenant’s obligations have been fulfilled for the period paid, says Jonker.
“One would hope that she has some form of proof of payment to show for this, as she is entitled to under the Rental Housing Act.”
Jonker says a civil claim against the old landlord, based on misrepresentation or unjustified enrichment, may be an option.
“The new landlord may also be entitled to similar remedies. He may have a further claim based on the contract he concluded regarding the purchase of the property.”
The tenant could also consider the complaints procedure under the Rental Housing Act, says Jonker.
“Securing advance payment under questionable circumstances could arguably constitute unfair practice on the part of the old landlord when the tenant’s only obligation was to pay her rental on time each month.”
