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Ask a lawyer – Can a cancelled lease be revived?

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Q

If we have demanded payment from a tenant, they have not paid and then we cancel the lease, can the lease be revived? I always thought that once a lease is cancelled, you have to sign a new one, if, for example, the landlord wants the tenant to stay on.

A

Where a lease has been cancelled or rescinded it can indeed be revived. However, the term “revive” in the context of contract law in fact refers to a new agreement being established and signed (presumably on the same terms and conditions as the cancelled one), and one can’t simply “revoke” or “withdraw” a previously cancelled written agreement.

However, in terms of the Rental Housing Act, it is not mandatory for leases to be in writing, therefore where a written lease has been rescinded and the landlord and tenant decide afterwards to continue as before, and thus the landlord consents to the tenant remaining at the property for the remainder of the original lease term, the parties are not required to sign a new lease (unless the tenant requests the landlord to reduce the lease to writing in terms of section 5(2) of the Rental Housing Act).

Instead, they may continue on the basis of a new oral lease agreement, which would (unless there is some express indication to the contrary) mirror the terms of the cancelled written lease.

For various reasons, however, although it is a valid and acceptable way to continue the lease relationship, concluding an oral lease agreement in lieu of reviving a cancelled written lease is not advisable, and I would definitely recommend signing a fresh contract to ensure the parties’ respective rights and obligations are clear – especially when one is dealing with a relationship where there has already been a breach and cancellation.


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Who is Marlon Shevelew?

Marlon Shevelew, director of Marlon Shevelew and Associates.

Marlon Shevelew, director of Marlon Shevelew and Associates.

Marlon Shevelew is the director of Marlon Shevelew and Associates Inc, a  law firm specialising in rental property, sectional title, contractual, consumer and company law. The firm is the recipient of more than 45 international property law awards. Marlon is the current author of PayProp’s rental documentation and preferred rental property attorney to the Institute of Estate Agents South Africa (IEASA), the Rental Housing Tribunal Western Cape, presenter of the Advanced Residential Property Law Seminar endorsed by the University of Cape Town and the director of the top rental property law firm in the country, according to several international publications. Marlon also created the unique Rental Retainer Club and RentDoc which offers clients affordable legal fees for rental property-related matters. Marlon is contactable on marlon@marlonshevelew.co.za anytime for more information on these services.

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