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Wednesday Sep 17, 2014

Who pays for rental properties' upkeep?

An independent consultant agency recently advised a tenant about his rights and how to deal with a dispute with his landlord.

The tenant was informed that the landlord was responsible for internal maintenance.

The advice was that the landlord was required by law to ensure the maintenance to the interior and exterior of the leased dwelling. Failure to attend to maintenance of the interior was a violation of the Rental Housing Act and constituted an unfair practice.

The tenant could lodge a complaint with the provincial Rental Housing Tribunal.

The Rental Housing Act 50 of 1999 mentions maintenance three times without referring to internal or external sections of the property.

Section 13 (4) (c) (iv) states that if the housing tribunal at the conclusion of a hearing is of the view that an unfair practice exists, it may make any other ruling that is just and fair to terminate any unfair practice, including a ruling to discontinue lack of maintenance.

As from the date of any complaint having been lodged with the tribunal, until the tribunal has made a ruling on the matter, or a period of three months has elapsed - whichever is the earlier - the landlord must effect necessary maintenance, (in terms of section 13 (7) (c)).

The third reference relates to the minister of Human Settlements regulating, among other matters, maintenance (s 15 (xiv)). The act is silent about whether maintenance is internal or external.

One needs to turn to common law, where the landlord is indeed responsible for maintaining the interior and exterior of the leased property.

The advice to the tenant was based in reference to a written lease agreement and the tenant's attention was drawn to the clause that was clearly headed: 'The Tenant' whose responsibility included the upkeep of the interior of the leased property at his own cost and specially be responsible to keep in good order and repair a number of items listed in several paragraphs.

It is not unusual to find a clause that reads, 'The tenant shall be responsible for maintenance, repair and upkeep, as the case may be, of the interior of the property, including all ceilings, all walls and floors, all doors and windows, all cooking, heating, cooling, lighting, plumbing and air-conditioning equipment in or on the property.'

Parties may also agree that the tenant will be responsible for maintenance, repair and upkeep of the exterior of the property. In other words, the tenant and landlord contracts out of the common law with the tenant taking over what the landlord is ordinarily required to do.

In ETE's Warehousing and Sales CC v Bowsink Investments CC 2000 (3) SA 833 (E), the court held that in the absence of an agreement contracting out of the common law, the landlord was obliged to provide the leased property in a condition reasonably fit for the purpose for which it was let, and thereafter to maintain the premises in such condition.

The written lease is a contract and the landlord and tenant can mutually agree for the tenant to take over the landlord's common law responsibility.

Our courts have confirmed the lawfulness of the tenant assuming the landlord's common law responsibility of maintaining the interior, but are strict in interpreting a clause in a lease 'transferring' this common law duty to the tenant.

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