Asked by Leigh on 14-02-2023 10:56:22
Question posted in the Landlord Tenant Law category relating to KwaZulu-Natal

I am the tenant in this situation, and I have signed a lease with my landlord, which I signed and emailed to her. She did not send her signed copy of the lease agreement nor attempt to give me a signed copy to date. According to the lease agreement, I need to give a calendar month's notice to terminate the lease agreement. I contacted the landlord via WhatsApp to ask if there would be any penalties if I gave short notice, to which she replied that we needed to stick to what was in the lease agreement. I then asked her if I could use the deposit I paid in the beginning as cover for the whole calendar month notice period, with me covering the shortfall for the month. I did not receive an answer from her; she did not reply to my message. I then sent an email the next day informing her of my 48 days notice of terminating the lease agreement and requested her signed copy of the lease agreement. I inquired as to when I would receive my deposit because, according to the lease agreement, it needs to be paid out within seven days of termination of the agreement; I even included the clauses from the lease agreement. The reason for me leaving or terminating the lease is that I found a place that is bigger and inclusive of lights and water. I have not received any response from the landlord to my messages and emails I have sent to her. I have two questions about this situation; firstly, what legal standing do I have if the landlord did not sign her signed copy of the lease, i.e., am I not covered by the lease? And secondly, what do I do legally to request a response from my landlord to my 48-day notice email? I need to make arrangements to either loan the money to pay for the full calendar month's notice period or if my deposit can be used for the respective month.

Posted by Att. Patrick on 14-02-2023 11:33:48

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.

Please keep in mind that our discussions is for general information purposes only. Our engagement on this website does not create an attorney-client relationship. 

I would assume that after signing the lease agreement you then moved into the leased premises. Based on this, I would say that it is safe to assume that the landlord has accepted the lease agreement as binding on the parties, even though you haven't actually received a countersigned lease in return.

In terms of the Consumer Protection Act ("the CPA") you are legally entitled to cancel the lease agreement early by giving the landlord 20 business days' notice (so, basically a month) and the landlord can't do anything about the early termination. 

However, also in terms of the CPA, the landlord would be entitled to charge you a penalty for cancelling the lease early. The penalty would be equal to 1 months' rental... so what most landlords do is they just keep the deposit. 

You don't need to give her 48 days notice to cancel. You can give her 20 business days' notice. So there might not be a shortfall in notice period. 

Q: firstly, what legal standing do I have if the landlord did not sign her signed copy of the lease? --> There must be a lease between the two of you. Like I said above, given that you are living there, and paying rental, and the landlord doesn't complain about you being there illegally, you can legally argue that the landlord has accepted the lease as being valid and binding. 

Q: secondly, what do I do legally to request a response from my landlord to my 48-day notice email? I need to make arrangements to either loan the money to pay for the full calendar month's notice period or if my deposit can be used for the respective month? --> What you should do is to give her the 20 business days' notice of cancellation, and then work out the number of days so that the deposit she is holding would cover any outstanding rental together with the cancellation penalty. You can't force her to reply, but the fact that you cancel the lease in terms of the CPA should kick her into gear. 

Posted by Att. Patrick on 14-02-2023 11:34:26

There is a good article here about cancelling a lease agreement in terms of the CPA 

http://www.greyvensteins.co.za/the-consumer-protection-act-and-its-effect-on-lease-agreements

The lease agreement i signed was valid for 6 months, I have been staying there for a year, and the lease agreement states that it would be a month-to-month lease thereafter. Would I be liable for penalties if the 20 business days' notice period is still held up by me? If the landlord sends me an invoice for the notice month am I obliged to pay the invoice amount and receive my deposit or should i only pay the difference between the deposit and invoiced amount?

Posted by Att. Patrick on 14-02-2023 17:19:06

Okay, so if you continued to stay in the leased premises after the lease expired, then you are staying there on a month-to-month basis incorporating the terms of the original lease. 

This means that in addition to your rights to cancel the lease in terms of the CPA, you can also give the landlord a FULL calendar months' notice to cancel the lease, WITHOUT any CPA penalty applying to you. 

So if you give notice now, in February, your lease will legally terminate on 31 March 2023. 

It appears that it would be cheaper for you to cancel the lease in terms of the month-to-month arrangement, instead of cancelling in terms of the CPA because then you'd need to pay a penalty.

Legally you are supposed to pay March's rental in full and then claim your deposit back once you vacate on 31 March. However, many tenants don't do that because landlords are not great when it comes to returning the deposit... so it really is your call.