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Ask a lawyer – Do I have to pay occupational rent for my house sitter?

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Q

My partner and I are in a process of buying a flat in Pretoria using our company name. The seller has given early occupancy and key handover with no rent, passing all responsibilities on the property to the buyer (our company) as from 8 December 2016. She resides in Cape Town.

Given the numerous break-ins in the complex in December (three for a short period) and attempted break-in in our unit, we decided through a company resolution to allow our friend to stay on the property without rent to avoid leaving the property empty.

In the last few days we have received three emails from the transfer lawyers asking at first whether we are subletting the property, stating that “the owner is very upset” and after our reply that we are not subletting, demanding the contact of our friend.

The transfer was lodged in the deeds office on 24 January, 2017.

We are quite confused as the company was given by addendum to the sales agreement early occupation with all the responsibility for the unit. Why is the seller so upset?

Our question is, do we have a right to have our friend as a company representative do “house-sitting” and what should we answer to the lawyers imperative tone emails in this situation?

A

Having regard to the facts set out in the trailing emails, I am of the view that the seller is not entitled to demand payment of occupational rent, notwithstanding his contention that the purchasers have been sub-letting the property.

In this regard, I note the following:

  •  As the seller and purchaser have concluded a written addendum to the deed of sale, which was clearly intended to regulate the purchaser’s occupation of the property prior to transfer, any payment of occupational rent would be regulated by the express terms of that document.
  • The addendum clearly states that there shall be no occupational rent payable and the seller cannot now demand payment, contrary to the terms of the addendum.

  • Absolutely no mention is made of occupational rent being payable by the purchasers, in the event of the property being let prior to transfer, so there is no legal or factual basis for the seller’s demand.
  • Furthermore, and as the addendum provides that the purchasers bear all risk and responsibilities in relation to the property, from the date of the key handover, their actions are quite evidently directed at safeguarding their interest in the property. This is evident from their explanation as to how (and why) the property came to be occupied.
  • Therefore, the fact that the property is occupied cannot, by the farthest stretch of the imagination, be construed as sub-letting, as the purchasers are not receiving remuneration from the occupant.

  • In any event, and having regard to the express wording of the addendum, even if the purchasers were in fact letting the property to the occupant, they would still not be required to pay any occupational rent to the seller.

Thus, there is no basis upon which the seller can demand payment of occupational rent, and the purchasers should simply refuse to accede to this unreasonable demand.


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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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