A reader who is renting a flat has approached the Property Poser panel about the possibility of moving into a vacant flat in that same block.
Although she has not provided much background information, it appears that the flat adjacent to hers has become available and the reader would like first option on taking occupation.
However, much to her annoyance, the reader’s landlord has made it clear that he will only rent the flat in question to a new tenant and that she should remain where she is.
Without an agreement or undertaking to the contrary, the reader would not have a right to merely move from one unit to another within a block of flats, says Charlotte Vermaak from Chas Everitt in Port Elizabeth.
“Having lived in the building longer than a potentially new tenant would not automatically create such a right.”
Vermaak says it is conceivable that such an option could have been created by way of agreement.
“The reader’s current lease agreement may make provision for the option to move from her current unit to a different one when such a unit becomes available.”
Such a right may have been expressed as a right of first refusal, thus permitting her to remain in occupation of her current unit or to move if she wishes, says Vermaak.
“Presumably there’s some attraction to the new unit that’s compelling our reader to consider the move.”
If the reader does have an option, she should examine the provisions of her lease to determine whether she is obliged to enforce her right in a certain manner, says Rian du Toit from DTS Attorneys in PE.
If an option is not contained in the lease agreement, but rather in some other form of written undertaking, the reader’s remedy would be to enforce that undertaking, says Du Toit.
“If the option was given as part of a verbal agreement, the situation becomes a little more difficult, especially in the absence of witnesses or supporting evidence.”
Du Toit says, depending on the exact terms of the agreement, the reader would have to prove that any utterances formed an enforceable oral undertaking.
“It’s important to consider that where the right or undertaking is increasingly difficult to prove, her chances of success may be diminished.”
Attempting to enforce it may prove futile and costly, and should be balanced with the reader’s desire to occupy the other unit, says Du Toit.
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