Many deeds of sale and lease agreements contain clauses which are commonly referred to as “non-variation clauses”. The exact wording of these clauses varies from one agreement to another but most are substantially the same. In essence these clauses provide that the parties agree that the written agreement constitutes the entire agreement between them (i.e. contains everything that they have agreed to) and that no amendments or variations to the written agreement will be binding on either of the parties (seller and purchaser; or landlord and tenant) unless the amendments or variations are reduced to writing and signed by both parties.
Notwithstanding these non-variation clauses attorneys and conveyancers are continuously faced with situations where one party to an agreement of sale or lease alleges that additional terms and conditions which do not appear in the written agreement of sale or lease were verbally agreed to between the parties – or one party alleges that the other party verbally agreed to amend one or more of the clauses in the agreement or one or more of the terms and conditions of the agreement. As a general rule the person making such claims will not have a leg to stand on and will be unsuccessful if they attempt to enforce the verbal agreement which they claim was agreed to.
The general rule of our law is that where a written agreement is entered into the court will, in the event of a dispute arising about the agreement, have regard only to the written agreement when deciding on the rights and obligations of the parties to the agreement. Generally a court will not entertain any claims by one of the parties that something else was agreed to (verbally) outside of the agreement. The inclusion of a non-variation clause in agreements strengthens this principle and makes it even more difficult for one party to prove any alleged agreement which is not contained in the written agreement.
The bottom line is that sellers and purchasers and landlords and tenants (and attorneys and estate agents) should ensure that everything that has been agreed to regarding the sale or letting of the property should be included in the sale or lease agreement and that once the agreement has been signed any variations or amendments to that agreement should be reduced to writing and signed by the parties.