One of our readers finds herself in the midst of a dispute with her landlord regarding alleged arrear rental.

She says she has signed a written agreement whereby she agreed to pay R3 200 per month. An equal amount was provided as a deposit.

The reader says she has made her payments regularly, and on time, for a year before the landlord’s letting agent informed her that the actual amount was R3 300 and that she was therefore in arrears.

The landlord is also threatening to use the deposit to cover any “outstanding monies”.

Schalk van der Merwe

Schalk van der Merwe from Rawson Properties Helderberg says the relationship between a landlord and tenant is mainly contractually driven. “Unfortunately, despite requesting it, our reader does not have a copy of the contract that she originally signed.”

He says the Rental Housing Act of 1999 provides that the lease agreement does not have to be in writing, but the landlord has to reduce it to writing if so requested by the tenant.

Van der Merwe says a lease would typically set out the monthly rental agreed upon, when it is payable and the landlord’s remedies should the tenant be in arrears.

“Failure to pay the agreed amount constitutes a breach of the agreement. In this instance, the amount is in dispute.

“Let us assume that the rental agreed upon was in fact R3 300 per month and that our reader mistakenly paid the incorrect amount for a year,” says Van der Merwe.

“She could make out a strong argument that by accepting the lesser amount for that length of time, the landlord had tacitly agreed to amend the agreement. Otherwise he probably would have raised an objection after the first month of receiving the incorrect payment.”

Lucille Geldenhuys

Then again, says Lucille Geldenhuys from Lucille Geldenhuys Attorneys in Stellenbosch, the written agreement concluded between the parties will assist in determining what the position will be regarding this aspect of tacit acceptance.

“The landlord may benefit from the typical inclusion of a non-waiver clause in the agreement, which would permit him to claim the higher amount despite the lower payment.”

Geldenhuys says another typical clause provides that any changes to the agreement should be in writing and no tacit acceptance of any changes will be valid.

“On the other hand, if it transpires that the monthly rental was only R3 200 and the landlord continues insisting that our reader has to pay the alleged arrear rental, the landlord will be put to the proof of his allegation.”

In such an instance, says Geldenhuys, the written contract will favour the tenant and the landlord will of course not be entitled to use her deposit in lieu of the arrears.

“The Rental Housing Act provides for a Tribunal to assess complaints relating to unfair practices, which are defined as being any ‘practice unreasonably prejudicing the rights or interests of a tenant or a landlord’.”

Geldenhuys says if the landlord therefore wrongly uses the reader’s deposit in respect of so-called arrear rental, which is not in fact due, the tenant may make use of this forum or proceed through normal legal channels to claim back any amounts unjustly taken.

Send your property related questions to coetzee[at]fullstopcom.com.