Question

Joe has a written agreement with Naomi in terms whereof he is renting a house from her. After the lease has been running for a few months, they agree orally that, from now on, Naomi (the lessor) shall pay for a gardening service to maintain the garden. In return, Joe (the lessee) will pay an extra N$ 100 in rent, since he no longer has to take responsibility for looking after the garden. Is this change valid?

Answer 1

Q. Joe has a written agreement with Naomi in terms whereof he is renting a house from her. After the lease has been running for a few months, they agree orally that, from now on, Naomi (the lessor) shall pay for a gardening service to maintain the garden. In return, Joe (the lessee) will pay an extra N$ 100 in rent, since he no longer has to take responsibility for looking after the garden. Is this change valid?

Answer:

1. Leases, like many contracts, do not have to be in writing. The landlord and tenant can agree to the terms of the lease contract orally and that contract is binding on both parties. However, there are advantages and disadvantages to entering a lease without a written contract that both the landlord and the tenant should be aware of before reaching a binding agreement.

2. As your relationship with your landlord unfolds, you may decide that certain terms in your lease or rental agreement need to be changed. The landlord may tell you orally that they will stop enforcing that part of the lease, but you should not rely on this type of promise. You never know if the building will change ownership or if the landlord will simply change their mind, and an oral change to a written agreement is hard to enforce. Instead, you should make the change to the lease in writing so that both sides have a record of it

3. If you only need to add a minor clause or a small amount of language to your lease, you can use the process above. If the changes to the existing lease are substantial, on the other hand, the landlord may prefer to prepare a new agreement or an amendment (sometimes known as an addendum). This new or additional agreement then will need to be signed by all of the parties before it becomes binding.

4. Can you enforce the oral modification?

To answer that, first you have to read your lease/rental agreement. Does it allow for subsequent oral modifications? If it does, then you may have a legal basis to seek enforcement of the agreement. If it does not or contains a clause that expressly prohibits oral modifications, then you have to look at the substance of the modification. Most lease/rental agreements will prohibit any subsequent covenants, promises, agreements or conditions unless it is reduced to writing.

5. In the instance case Joe has a written agreement with Naomi in terms whereof he is renting a house from her. After the lease has been running for a few months, they agree orally that, from now on, Naomi (the lessor) shall pay for a gardening service to maintain the garden. In return, Joe (the lessee) will pay an extra N$ 100 in rent, since he no longer has to take responsibility for looking after the garden. Considering the situation the amount involved is not sustantial with respect to the lease agreement and keeping in mind the above understanding one can conclude that this change is a valid change.