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Wednesday Nov 26, 2014

Consent needed to amend lease

A property lease cannot be changed while it is in use, unless the landlord and tenant agree to any change.

The tenant cannot, for example, refuse to pay water charges when the rental agreement was that the tenant would pay a monthly rental with additional charges for water and electricity consumption.

Similarly, the landlord cannot force the tenant to pay additional charges for water if the rental agreement was that water charges were included in the monthly rental. The landlord cannot introduce separate water meters for the individual account of the tenant without the tenant's consent.

If there is an agreement for the installation of separate water meters, the landlord is required to pay for the installation costs. This would also apply to the installation of separate electricity meters where the tenants share accommodation or rent individual flats.

Installing separate meters with the municipality, billing the tenant is not the same as the landlord installing individual meters off the bulk meter.

In other words, the municipality bills on the consumption recorded on the bulk or main meter while the landlord takes his own reading of the meters he installed.

Some tenants are forced into accepting the changeover to separate meters without a rental deduction since the water charges were included in the rentals prior to the installation of separate meters.

Some tenants are willing to resist and challenge the unilateral change to their leases.

Last week, Imthiaz Randeree of 18 High Street, Ocean View, KwaDukuza, was served with a notice to vacate for challenging a unilateral change to his lease. Separate water meters were installed for the three tenants and had appeared to have become operational since November 1.

The accounts were to be apportioned to the tenants according to each tenant's usage. Randeree disputed the installation of the water meter and the water account he was expected to pay.

He received statements for water usage for the first time in four years for September and October, requiring him to pay R800 for each month.

Cecilia Fortoen, Tyson Properties property management consultant, issued a letter at the beginning of November acting on the instruction of a man she identified as the owner.

She informed Randeree that the water meter was installed and had become operational from November 1 and that should he fail to pay R1 600 for the outstanding water accounts by November 15, he would receive a notice to vacate. If he paid the water account, the dwelling would be renovated in the new year.

Randeree claims that he did not agree to any change to his oral lease. One of the material terms was that the monthly rental would be inclusive of water charges. The lease is now in its fourth year and not once was he required to pay separately for water.

Asked to comment about the inconsistencies between Tyson's letter and Randeree's allegations, Fortoen's response was that they were in the process of collating documents and then meeting the owner "before presenting to the Rental Housing Tribunal within the week".

The same response was given on the second occasion and when told that the tribunal would not be able to answer questions posed to her, Fortoen responded on Friday that a complaint was lodged with the KZN Housing Tribunal.

She said that they wanted to follow the due process to have the matter heard and mediated at the tribunal in an amicable and fair manner because all civil communication had broken down between all parties.

"The tenant and owner's families are long-time family and business associates. They just seek resolution. Please note there are many components to this matter. We trust you understand the complicated circumstances."

On the same day Fortoen claimed that the landlord wanted an amicable resolution, the sheriff served a notice to vacate with several serious allegations against Randeree.

The notice was signed by Fortoen and the landlord. No notice of complaint allegedly lodged with the tribunal was served on Randeree.

What remains unanswered and confusing to Randeree is the statement of account for water usage for September and October when the meter became operational from November 1. If separate metering was in place, how was it that the consumption charges were identical for September and October and no municipal bill was available?

Was the landlord a member of Tyson Properties since his signature appears on Tyson's letter of November 1 and on the notice to vacate delivered by the sheriff on Friday? Who actually owns the property?

Who installed the meters? Are the meters monitored and checked by the municipality? These and other questions remain a mystery as do the functionality of the meters when scrutinised at the weekend.

Dr Sayed Iqbal Mohamed

Tenant Issues
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