SA Property Law - Legalities for property rentals regarding owners married in Community of Property

Can a husband and wife, married out of community of property, and who jointly own a property only have one of them sign a lease with the tenant?

As things stand, each of the spouses own an undivided half share in the property and each of them may do what they wish with that undivided half share.

Strictly speaking, then, yes, one owner could enter into a lease agreement, but that agreement would be in respect of that owner’s undivided half share in the property only, as one owner cannot transact in respect of the other owners undivided half share.

While this may seem somewhat irrelevant from practical perspective, because the tenants would be given access to the entire property, it could have serious legal implications should disagreement arise between the co-owners or one of the co-owners (especially the one who has not signed the lease) and the tenants.

It is, therefore, in the best interest of all the parties that the lease be signed by both owners as the landlords, alternatively by one owner, but in both his/her personal capacity and under power of attorney of the other owner, so that ultimately it is clear that they are both the landlords in the agreement.

Courtesy: The EAAB - Estate Agency Affairs Board

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