I entered into a lease in 2009 with a landlord, who leased his premises for a period of 15 years. Hence, my lease expires in 2024. It has now come to our attention that the title deed only had 12 years to expiration, i.e it expires in 2021. Can the lease be for a period longer than the title deed expiration? On a separate note, if a landlord has accepted rent when he has also given you notice to terminate a lease, can I bind the landlord to renewal since he accepted the rent?
6 August 2012
According to the Land Act, the holder of a right of occupancy may lease that right of occupancy or part of it to any person for a definite period or for the life of the lessor or of the lessee or for a period which though indefinite, may be terminated by the lessor or the lessee. However, the maximum term for which any lease may be granted shall be ten days less than the period for which the right of occupancy has been granted where the right of occupancy has been granted for a definite period.
From the above, the lease could not have been granted for a period of more than 12 years, less ten days from the time you entered into the lease. You will need to turn to the interpretation of the lease, and what was the intent at the time of entering the lease. One of the options you have is to agree on an addendum to correct the error. Should the lessor not be cooperative, it is likely that based on severability principles, your lease may be held to be of 12 years less ten days. It surely cannot be over this period, as the law disallows such an arrangement.
Answering your second question, the Land Act states that, where a lessee remains in possession of land without the consent of the lessor after the lease has been terminated or the term of the lease has expired, all the obligations of the lessee under the lease continue in force until such time as the lessee ceases to be in possession of the land. The Land Act further holds that, when a lessor who accepts rent in respect of any period after the lease has been terminated or the term of the lease has expired is not, by reason only of that fact, to be taken as having given consent to the lessee remaining in possession of the land or as having given up on any of the rights or remedies of the lessor against the lessee for breach of a covenant or condition of the lease. However, where the lessor continues, for two months, to accept rent from a tenant who remains in possession after the termination of the lease, a periodic lease from month-to-month shall be deemed to have come into force.
Hence, acceptance of further rent does not necessarily mean that the lease has been extended.