Real Estate Investor Magazine South Africa November 2015 | Page 28

RENTING

The Effects of an

Unsigned Lease
Navigating Landlord and tenant relations
BY MARLON SHEVELEW

T

he Rental Housing Act of 1999 (RHA) is clear
that a lease need not be reduced to writing
unless it requested by the tenant, in which case
a landlord must comply.
If the lease is in fact written, but unsigned by the
tenant, then section 50 of the Consumer Protection
Act of 2008 (CPA) deems it valid and binding.
From these provisions we can glean that if there is
a written agreement, albeit unsigned, it may still be an
enforceable record of the contractual relationship.
Although not applicable throughout the country,
the manner in which the Gauteng Unfair Practice
Regulations have addressed the issue ought to serve as
a useful guideline:
4 (1) If the landlord does not sign and deliver a
written lease agreement, signed and delivered to
the landlord by the tenant, acceptance of rent by
the landlord gives the lease agreement the same
effect as if it has been signed and delivered by the
landlord; on the other hand4 (2) If a tenant does not sign and deliver a written
lease agreement, signed and delivered to the
tenant by the landlord, 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 by the tenant.
The above approach is re-affirmed by the common law
principle that the true intention of the parties may be
ascertained from the circumstances surrounding the
conclusion of the contract and the subsequent conduct
of the parties.
The act of presenting an unsigned written agreement
to the other party for signature may be construed as
an offer to enter into a contract as embodied in that
document (Roberts v Martin 2005 (4) SA 163 (C)
168).
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NOVEMBER 2015 SA Real Estate Investor

A clause in a lease stating that it is not binding
unless signed by both parties would therefore have a
somewhat paradoxical effect.
For example, a Landlord delivers an unsigned lease
to a new tenant, which contains such a clause (intended
to operate as a suspensive condition). The tenant signs
and moves into the property, paying his first month’s
rent. The Landlord, despite handing over occupation
and accepting rent, drags his feet in signing. If a dispute
arises in future warranting determination of the precise
rights and duties of each party, then despite the fact
that the written lease is rendered inoperable by the
unfulfilled suspensive condition, it is also clearly an
exact recording of the precise terms of the parties’
agreement, signed by both parties or not.

The act of presenting an unsigned
written agreement to the other party
for signature may be construed as
an offer to enter into a contract as
embodied in that document
Technically, the lease itself might not be enforceable,
however there is no doubt the parties concluded an oral
agreement. How else would one determine the terms
of the oral agreement but in the ‘inoperable’ lease?
The RHA and CPA confirm the validity of their
contractual relationship, oral or otherwise.
Therefore, the landlord’s offer, the tenant’s acceptance
and their consequent conduct render the suspensive
condition meaningless.

RESOURCES
Marlon Shevelew and Associates Inc. Attorneys at Law
www.reimag.co.za