A Property24 Reader says she signed a lease agreement which is only effective from 1 September. However, the landlord has not yet signed it.
READ: 5 things tenants should check before signing a lease
"It has been 3 days since I signed it. May I cancel it?" she asks.
Abrahams & Gross attorney and conveyancer, Farzanah Mugjenkar replies: "If the lease agreement does not contain an irrevocable clause, then you may withdraw your offer provided occupation has not been taken. However, If this clause is contained in the lease agreement, your offer may not be withdrawn," she says.
Linda Jordaan, attorney and conveyancer at Herold Gie Attorneys shares the following advice:
Jordaan says if the lease has not been orally concluded and not yet signed by the Landlord, there is nothing to cancel and the tenant is entitled to inform the landlord that his/her offer to enter into the lease is withdrawn unless the offer by the tenant to enter into the lease was made irrevocable for a certain time period within which the landlord could accept the offer of a lease and sign the lease.
The lease may however have been orally concluded, even though it may not yet have been signed by the landlord," says Jordaan.
Where a lease has been orally concluded or is in writing, Jordaan says, the tenant may in terms of section 14 (2) (b) (i) (bb) of the Consumer Protection Act No 68/2008 cancel the lease on 20 business days' notice to the landlord, but the tenant will be liable for all rental payable up to the date of termination of the lease and the landlord may impose a reasonable cancellation penalty.
READ: How to safely cancel your residential lease agreement
Section 1 (1) of the Formalities in Respect of Leases of Land Act No. 18/69 provides that:
"no lease of land shall be invalid merely by reason of the fact that such lease is not in writing"
Therefore, if a lease has been orally agreed, Jordaan says, it is a binding lease, even though it might be difficult to prove its existence or the terms of the lease.
A lease must be in writing, if the tenant under a residential lease, requests that the lease be reduced to writing. (Section 5(2) of the Rental Housing Act No. 50/99).
A lease for 10 years or more, must also be in writing and be registered against the title deeds of the land which it is over, to be effective against creditors and successors in title of the landlord (section 1 (2) of the Formalities in Respect of Leases of Land Act No. 18/69).
READ: The new property act and what it means for you
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