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Wednesday Sep 10, 2014

Tenants cancel lease over lack of security

The essential aspects of an advertisement of a rental property ought to be incorporated into the lease to avoid conflict.

Often prospective tenants are attracted to what is offered in an advertisement.

Private listing by a landlord or advertising through a letting agent is a powerful way to find a tenant. This would entail honest, clear and concise wording in print and online, and may comprise a photograph or several photographs in an online advertisement that displays different aspects of the property.

An advert may state that security is provided in a complex or a block of flats, for which charges are levied.

The landlord or agent must indicate in discussions, and later in the lease, whether the charges are included in the rental or are to be paid separately, as well as the extent of the security.

Security is a major concern, and an advert offering such a service to a potential tenant can be quite enticing.

A tenant was incensed when she lost her valuables despite the presence of security guards in her complex. While the advertisement stated 24-hour security, the lease was silent about it and contained a 'non-variation' clause. In terms of this contractual clause, any information or discussion outside the agreement is not binding unless it is reduced to writing and signed by both parties.

Let us assume that the 24-hour security is contained in the lease agreement and provides details of the security services too. Can the tenant cancel the agreement and sue for breach of contract?

The tenant may succeed in this instance if the security guards were negligent. The tenant must prove that the landlord was under a duty to provide security, the scope of the security guard's duties, and what was breached.

However, the tenant may not succeed in her claim if the landlord is able to prove that she was negligent or the duties were limited, and therefore excluded certain 'protection'.

A landlord is not obliged to provide security such as an alarm system, burglar guards, a security fence or security guards to the leased property unless he expressly undertakes to do so. In the absence of such an agreement, the tenant is unlikely to succeed in terminating the lease for breach and instituting a claim for damages.

A case in point is Rebel Discount Liquor Group (Pty) Ltd v La Rochelle Erf 615 Investments CC 2006 JDR 0031 (C), where the court had to decide if the tenant's cancellation of the lease for breach relating to security was valid.

The tenant vacated the premises because the landlord failed to remedy the alleged breach. According to the tenant, the armed robberies and burglaries threatened the safety and welfare of its employees, and prevented the tenant from undisturbed use and enjoyment of the premises.

The tenant argued that the landlord, by failing to provide proper security, failed to maintain the leased premises in a proper condition, resulting in a series of armed robberies and burglaries.

The court held that the landlord was responsible for maintaining the leased premises in a state fit for the purpose for which they were let.

Security did not form part of maintenance, and the tenant did not have grounds to cancel the lease.

'Providing security, in whatever form, cannot be regarded as an element or attribute of such condition, unless it has been specifically agreed to by the parties. On the contrary, it is for the tenant to ensure that its business and employees are protected from criminal acts perpetrated by third parties, be it by physical means, such as the installation of security gates, burglar proofing and the like, or by the use of appropriately qualified security personnel.'

It is necessary to establish at the outset if security will be part of the lease agreement, and this must be stipulated in the final contract signed by parties.

Dr Sayed Iqbal Mohamed
Chairman, Organisation of Civic Rights
Tenant Issues
Daily News

For tenants' rights advice, contact Loshni Naidoo or Pretty Gumede at 031 304 6451


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