A reader has approached the Property Poser panel with a somewhat peculiar dilemma involving occupational rental on a property she recently bought.
She writes that the seller wished to remain in occupation for a few months following transfer. The agent and seller agreed to the monthly occupational rental payable and the reader agreed to the sum as recorded in the agreement of sale on the property.
Registration of transfer took place earlier this year and the seller duly remained in the property as agreed.
A week or two after the end of the seller’s first month in occupation, he presented the reader with a list of expenses for which he claimed she was liable, or partly liable, as the case may be.
The list included a share in the costs of a garden service, house cleaning service, satellite television subscription, electricity, and usage costs for his furniture and equipment on the property.
The reader says there was no agreement regarding such costs and wishes to know how she could handle the matter in future.
While waiting for her new house to become available, she is likewise “renting” her old house from its new owners and cannot imagine expecting them to subsidise her expenses while staying in occupation.
Occupational rental is a concept that allows either the seller or purchaser extended or early occupation of a fixed property before or after the registration of transfer, says Sean Radue of Radue Attorneys in Port Elizabeth.
“This allows the parties to make suitable arrangements for vacating a property or moving into the new one at a time more convenient than merely ‘on transfer’.”
Radue says the timing of the transfer may be estimated quite accurately but could be delayed due to unforeseen circumstances.
“We aren’t told whether there was any further agreement between the parties as to what might be included in the occupational agreement clause but it seems that only the amount was stipulated.”
He says another possibility is that the seller may be under some misconception, perhaps as a result of something the agent said.
Radue says most written agreements include a non-variation clause stating that the provisions of the agreement can only be amended in writing.
“From our reader’s outrage, we can safely assume that no amendment was effected.”
He says the seller in this instance is also a tenant and thus would have certain rights under the Rental Housing Act.
“But the examples mentioned by our reader don’t seem to fall within the ambit of the legislation.”
The tenant could raise issues relating to the diminution of his enjoyment of the property, says Radue, but this could quite easily relate to issues with a latent defect that he failed to mention as part of the sale of the property, thus painting himself into a corner.
“Other than a skewed interpretation and application of unjustified enrichment, which seems unlikely, and in the absence of an agreement between the parties, it seems unlikely that the seller would be successful in getting a reduction of the occupational rental based on the examples provided.”
He says the reader could take legal steps to protect and enforce her rights.
Alan Straton
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