Check that cor­re­spon­dence was re­ceived

Weekend Argus (Saturday Edition) - - PROPERTY -

A DE­CI­SION handed down by the KwaZulu-Natal High Court makes it clear that in any cor­re­spon­dence be­tween a ten­ant and a land­lord, the sen­der of the com­mu­ni­ca­tion is re­spon­si­ble for see­ing that the re­cip­i­ent re­ceived it, whether it be a let­ter, e-mail or tele­gram, says Tony Clarke, MD of Raw­son Prop­er­ties.

The case has also reaf­firmed the im­por­tance of keep­ing records of all such cor­re­spon­dence and, if pos­si­ble, ei­ther hand de­liv­er­ing or send­ing let­ters by reg­is­tered post.

The ten­ant in this case rented three com­mer­cial units owned by the land­lord in a shop­ping cen­tre in Pi­eter­mar­itzburg. The lease agree­ments stip­u­lated that at the end of the five-year lease pe­riod the ten­ant could re­new his lease at a 12 per­cent an­nual in­crease in the rental – pro­vided he ap­plied to do so in writ­ing six months be­fore the lease ex­pired.

T h e t e n a n t c l a i me d t h a t t h e re­quired let­ter had been writ­ten and it then tran­spired that he had asked the man­ager of his in­ter­net café (op­er­at­ing in one of the rented shops) to type and send the let­ter. The café man­ager tes­ti­fied that this was done, but he did not keep a copy or send one to the ten­ant. It was al­legedly saved on the hard drive but then deleted in a virus clean-up op­er­a­tion.

The high court, though ad­mit­ting that there were many grey ar­eas in the dis­pute, con­firmed the orig­i­nal de­ci­sion that the lease had ex­pired and the ten­ant could be evicted.

Clarke says many es­tate agents have had sim­i­lar ex­pe­ri­ences where the re­cip­i­ent claimed not to have re­ceived the let­ter. The golden rule is al­ways to post a copy within one week and to check tele­phon­i­cally if there would be a re­sponse.

“Pre­vi­ous cases of this kind re­ferred to in the court’s de­ci­sion have shown that the onus is on the sen­der to con­firm that the com­mu­ni­ca­tion is re­ceived. All too of­ten re­cip­i­ents will claim they have not re­ceived let­ters be­cause it may well suit them to do so,” says Clarke.

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