When love and money walk out the door

Private Property South Africa
Anna-Marie Smith

Unmarried couples with one signatory to a rental agreement run the risk of their finances crumbling in the event that their relationship collapses.

Some industry specialists say that under these circumstances the lease agreement stays behind with the remaining partner even if the signatory to the rental contract belongs to the deserter: the remaining partner has a legal obligation as he still resides at the address. Whether couples live in the same premises purely for financial reasons or whether they are in committed relationships, the packing of one’s bags does not change a legal agreement. This then, say some, dispels the notion that living together might be a paperless affair.

Bill Rawson of Rawson Properties says that land lords and investors are often tasked with collecting rentals from tenants who have become bereft of cash as well as love. The knock-on effects of short- and no-payment of monthly rentals extend to all parties involved in a lease agreement. When tenants find themselves in reduced circumstances, owners run the risk of blemished credit records if their bond payments cannot be honoured.

Rawson says that when agents sign on unmarried couples, some insist that only one person signs the lease and takes on the full responsibility for the payments, albeit that this precaution is hardly fool-proof when the now-single signatory is unable to meet the rental obligations.

A second opinion

However, there are different views on the entire matter. Attorney partner Tania Jooste of Jooste Heswick Inc in Stellenbosch says only the party who entered into the lease is liable in terms of the contract.

She says that even if this party vacates the premises but fails to cancel the lease, he would remain liable until the lease lapses, or is legally terminated. Additionally, she says the landlord would possibly have claims against the party occupying the premises – either for the use of the premises as a form of enrichment, or for damages suffered during the unauthorised occupation.

Jooste says: “A lease agreement does not have to be in writing, but in order to protect the interests of all the parties, we suggest that both the occupants sign the lease as tenants, and bind themselves jointly and severally as lessees.”

A reluctance to commit to any formal agreements is often the point at which agents ask for the signature of a parent to guarantee payment of shortfalls.

Jooste says the basis of any contract is consensus. “Whereas the landlord cannot force or coerce any party to enter into any contract including a suretyship agreement, it is an agreement that can be negotiated and agreed upon amongst the parties.” The landlord may well set it as a condition to the contract, but it would have to be negotiated, agreed to, and signed by all the parties concerned.

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