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Ask a lawyer – How does my tenant’s mental disorder affect the lease?

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Q

What happens in a case where a lease has been signed by an elderly lady and two months later it is found that she is mentally unstable and has been admitted to a hospital for observation? I know it is a long legal process to have her declared as mentally unstable and to get somebody appointed to look after her affairs, but how does this affect the signed lease agreement? Will the lease be automatically cancelled and can the owner market it again?

A

You are quite correct that the process of having a person declared of unsound mind, and therefore incapable of managing their own affairs, is a rather long and tedious one.

Should the process be concluded, and the tenant is found to be of unsound mind, then this may have the effect of invalidating the lease agreement.

With reference to the above, particularly my use of the word “may” in the preceding paragraph, it is important to bear in mind that any application to have the tenant declared non compos mentis will have to be supported by medical / psychiatric reports, which should provide an indication of the tenant’s state of mind at the time of signing the lease. The question of the validity of the lease will hinge on whether the tenant had the mental capacity to enter into a contract at the time of concluding the agreement.

If the tenant was indeed of sound mind at the time of concluding the lease agreement, then a declaration of her insanity will not have the effect of automatically invalidating the agreement. In that instance, the obligations under the lease would transfer to her estate, and the curator who is appointed to manage her affairs would be obliged to make good on her rental obligations to the landlord. The landlord would therefore be fully entitled to recoup any rental from the tenant’s estate.

Should the landlord be concerned about the situation, I would suggest trying to trace and contact the tenant’s family, in order to ascertain whether she has granted any person a power of attorney to act on her behalf. If she has, it may be worthwhile to liaise with this person in order to facilitate a mutual termination of the lease agreement.


Got a burning legal question? Email david@hometimes.co.za and we’ll be sure to assist you 


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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