In cases
where property has been damaged due to hail; floods or tornado’s or any other
circumstances beyond the control of the Tenant it is imperative to distinguish
whether the premises have been damaged to a point that it is no longer safe to
reside in the property, or if the property is damaged but is still deemed safe
to reside in.
If
the Premises leased is no longer safe to reside in:
If the
Property leased is no longer structurally sound, it is imperative to follow all
evacuation procedures to guarantee the safety of all Parties. In respect of the
premises, the Parties should consider the Liability clause in their Leases. As
per TPN’s current Residential Lease Agreement:
“should
either Party suffer any loss as a result of a natural disaster, or any other
incident beyond the control of the other Party, it is hereby agreed that such
Party will, in no way be entitled to a claim for damages as a result of such
incident from the other Party, In the in the event that a natural disaster, or
any other incident beyond the control of either Party, renders performance by
either Party impossible, this Lease Agreement shall terminate
immediately and neither Party shall have any claim for damages against the
other Party”.
Therefore, due to the floods being beyond the control of
either party, neither the Landlord nor Tenant should be entitled to claim for
damages as a result of the floods.
The Lease shall terminate immediately, and any deposit held in
trust by the Landlord or Property Practitioner should be released back to the
Tenant as per the Lease Agreement, considering the circumstances.
If the Premises leased is damaged but still safe to reside
in:
In instances where the leased premises is damaged by a natural disaster,
such as a flood or violent storm, the liability in respect of the repairs to
the immovable property, that is the structure and permanent fittings, lies with
the Owner of the Premises.
In terms of sectional title schemes, section 37 of the Sectional Title
Act, explains that the Body Corporate is responsible to repair damage to the
common property. An example in this respect, would be any damage to the roof or
foundations of a complex as a result of the floods or rain.
Summary
If the tenant cannot reside in the property because of the conditions
rendering it uninhabitable then the rental is not payable by the tenant – they
cannot pay rent for a property that they cannot use.