Hi. My aunt and mom had a verbal lease a...

Asked by Marlize on 23-10-2021 12:52:44
Question posted in the Property Law category relating to Western Cape

Hi. My aunt and mom had a verbal lease agreement for a flat my mom owns. The rent was paid by my aunt's partner's son. 

My aunt moved out without paying rent and my mom would like to go to small claims.  My aunt refuses to take responsibility sighting she is not responsible for the rent as she does not pay rent.

My logic would argue that she is still the lessee regardless of who pays the rent? Who according to the law should we take to court? My aunt, the partner and the son refuses to take responsibility.

Answer to the Question

Posted by Att. Patrick on 23-10-2021 14:38:14

Hi there and thank you for your question, 

I am a practicing attorney based in South Africa and I will assist you with your question. Please feel free to ask as many follow-up questions in order to clarify your question. If you have a new question, you must please open a new thread. 

If your mom (as landlord/owner of the property) entered into the lease agreement with your aunt (as tenant) that your aunt would rent the property from your mom, then your aunt is the tenant and must comply with the terms of the lease agreement.

If your aunt's son paid the rental on behalf of your aunt, that does not relieve your aunt of the contractual obligation to pay the rent in terms of the lease. All that is happening, in reality, is that somebody else was paying the rental on your aunt's behalf. If they stop paying it, your aunt can't argue that she doesn't owe the rental.

She needs to make a plan and comply with the oral lease agreement.

Q: My logic would argue that she is still the lessee regardless of who pays the rent? --> 100% correct.

Q: Who according to the law should we take to court? --> The person who the original lease agreement was entered into. i.e. your aunt.

Q: My aunt, the partner and the son refuses to take responsibility. --> What you could do is to sue your aunt as the first defendant, and the son as the second defendant, and you would then say that your aunt is liable to pay the rental but if she denies it and says that her son must pay it, then he is already part of the court proceedings. 

If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question. 

Att. Patrick 

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