Are all married couples legally required to jointly sign lease agreements?
Hi, We suddenly need to relocate for work and will need to rent a home. We’ve found a suitable place and made contact but the landlord is insisting that he wants a joint application from me and my wife. I don’t understand this; although she earns an income my income is more than sufficient to comfortably afford the rental.
He says that this is the way it is legally required to be done with married couples (regardless of how they are married) while I believe he is wrong. We have decided to rent another property but I would still just like to know that he was wrong and I was right. Redemption! – Andrew
Hi Andrew, with reference to your query, I advise as follows:
The answer to your question, whether one is married in or out of community of property, is, in fact, that the landlord was incorrect.
If the parties are married out of community of property, then each party had full contractual capacity to enter into the lease agreement either individually or jointly.
Very clearly, there are advantages to the landlord in having you both sign the agreement as tenants (he can sue you both or he can choose which one to sue if you agree to be jointly and severally liable for the payment of the rental), but this is not a requirement in law. Nothing prohibited you from entering into the agreement alone, but on the basis that the occupancy would include your spouse to whom you are married out of community of property.
If the parties are married in community of property, then the scenario is governed by the provisions of the Matrimonial Property Act, 88 of 1984 (“the Act”);
Section 15(1) of the Act states that “Subject to the provisions of subsections (2), (3) and (7), a spouse in a marriage in community of property may perform any juristic act with regard to the joint estate without the consent of the other spouse.”
What this means is that save for the instances set out in the sub-sections referred to, either of the two spouses may bind the joint estate and they may do so without the consent of the other spouse.
The sub-sections referred to then set out the exceptions, which entail, for example, purchasing immovable property or binding yourself and your spouse as a surety, but they do not include entering into a lease agreement for immovable property.
What this means then is that the landlord could have entered into the agreement with only one of the spouses, but in this scenario both would still have been liable for payment of all amounts due, simply because there is no such thing as separate estates when one is married in community of property.
I trust, not only that this provides clarity, but also that it provides the necessary satisfaction required.
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Who is Marlon Shevelew?
Marlon Shevelew is the director of Marlon Shevelew and Associates Inc. a law firm specialising in rental property, contractual, consumer and company law. The firm is the recipient of more than 45 international property law awards. Marlon is 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 and presenter of the Advanced Residential Property Law Seminar endorsed by the University of Cape Town. Marlon has featured on Cape Talk 567 and Property Matters on DStv, contributes as a guest expert to several property publications and was invited by Juta to write a book on rental property law, by LexisNexis Butterworths to edit its forms and precedents on rental property law and, on no less than three occasions, was invited by the Law Society of South Africa to lecture and train candidate attorneys and attorneys on rental property law. Marlon also created the unique Rental Retainer Club, RentDoc and LevyDoc which offers clients affordable legal fees for rental property and sectional title related matters. Marlon is contactable on email@example.com anytime for more information on these services.