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Wednesday Oct 03, 2012

Withholding rent is a legal breach

Some tenants withhold rentals for good reasons and others use excuses because they do not have the money to meet their rent.

Whatever the reason, tenants who do not pay their rent are most likely to be evicted, being legally or unlawfully forced out of the dwelling.

Non-payment of rent is a breach, and although the tenant is deprived of full use and enjoyment of the dwelling, or its usage may have diminished, rent must be paid.

The courts have allowed non-payment of rent in certain instances, but the courts decide on the facts of the dispute, common law and the terms of the lease contract.

The tenant may be absolved from any payment if unable to take occupation due to the landlord's failure to deliver the dwelling as agreed.

In Ntshiqa v Andreas Supermarket (Pty) Ltd, 1996 (3) All SA 154 (Tk) the tenant was entitled to withhold rent for one month to compel the landlord to perform.

The tenant's use and enjoyment were disturbed by the landlord's failure to maintain the property; the defects being necessary as the landlord had tampered with the electricity.

The tenant may have the rent reduced in proportion to the reduced use and enjoyment, depending on the circumstances of the case.

What is the remission amount, how is it calculated and once established, how is the amount recovered by the tenant?

The courts and the Rental Housing Tribunals are able to provide answers to these questions.

In the case of a tenant who claimed the right to withhold rent because only partial

e-mail occupation was possible, the facts based on the lease contract provided options that the tenant did not exercise, and allowed for the cancellation of the lease when the tenant failed to remedy the breach of nonpayment.

In eThekwini Metropolitan Unicity Municipality (North Operational Entity) and Pilco Investments cc 2007 JDR 0397 (SCA), the tenant was not allowed a rental remission.

The tenant failed to rectify the breach within 90 days by paying the rent arrears that had accumulated over three years.

The tenant alleged that the landlord was in breach for the failure on the landlord's part to point out the boundary pegs, as required by the provision of the lease, and between 3 000m² and 4 000m² of the property was used by another occupant.

In the judgment delivered in May 2007 in the Supreme Court of Appeal, Judge BJ van Heerden said: "It follows that, upon taking occupation of the property in late 1994, the plaintiff became obliged to pay rent to the defendant, as stipulated in clause 1 of the lease.

"Of course, because the plaintiff was, until early June 1997, deprived of the use of that portion of the property, which was being used by the person making pre-cast fencing, the plaintiff would be entitled to a remission of rent over the period in question, proportional to its reduced use and enjoyment of the property.

"If the amount to be remitted was capable of prompt ascertainment, the plaintiff could have set this amount off against the defendant's claim for rent; if not, the plaintiff was obliged to pay the full rent agreed upon in the lease and could thereafter reclaim from the defendant the amount remitted."

According to the court, the tenant did receive some benefit by occupying the dwelling and was therefore liable for rent proportionate to the deprivation.

The tenant may not cancel the lease for not having "total occupation" when the landlord has already cancelled for the tenant's breach (by non-payment of rent).

The tenant also had the option of taking possession of the dwelling after the occupant had vacated, with the full rent being due from the time of "total" occupation.

It is the court or the tribunal that will decide what amount is to be a reasonable rent in the light of the reduced rental value of the leased dwelling.

The court has the powers to change the decision of the tribunal, as it did with the Western Cape Tribunal's in Perryvale Investments (Pty) Ltd v S Patel NOand Michael Katz (1309/2005) [2008] CPD (July 25, 2008). In this case, the judge allowed for part-remission and set aside rental remission for the period the landlord provided the tenant with alternative accommodation, which the tenant rejected.

Dr Sayed Iqbal Mohamed, chairman, Organisation of Civic Rights.

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