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.

In South Africa, it is commonly accepted that a landlord is responsible to pay the rates and taxes and the tenant pays for all consumption and use of the service provided.

This, however, can be stipulated in the Lease agreement signed by the Tenant and Landlord, so that all or some of the rates and taxes are the responsibility of the tenant.

Over the years, because the sewerage and refuse are services used by the tenant, most contracts have been drafted to provide that the tenant is responsible for these charges, BUT, it must be stated in the lease agreement. 

Yes, reasons for rejecting your application for rent might include your credit profile, affordability or suitability such as "no pets" allowed in the complex.

Your application may not be rejected due to discrimination on the grounds of race, gender, sex, pregnancy, marital status, sexual orientation, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, language and birth.

The landlord is entitled to demand that all adults over the age of 18 co-sign the lease jointly and severally liable. This means that if any one of the co-tenants does not pay their portion of the rent, all the tenants become liable for any outstanding portion.

It is important that you, the tenant, understands your responsibility to the landlord. If you are unsure of your co-tenant's ability to timeously pay their portion of the rent, it could affect your continued occupation of the property and your credit profile.

The tenant and the landlord will negotiate this up-front. The amount of deposit due will be written in the lease agreement.

The landlord is entitled to negotiate whatever deposit he / she deems fit. It is common for the landlord to require one month’s rent or a double deposit (2 month’s rent). The landlord could even require a triple deposit if the tenant's credit report is considered risky.

However once the amount of the deposit has been agreed, the landlord cannot demand a bigger deposit during the term of the lease – unless the tenant agrees, or the lease agreement makes provision for a top-up when the rent increases

Practically, the landlord should not hand over the keys to the property until the agreed deposit and first month’s rent has been paid (and cleared in the case of a cheque).

Common law states the landlord must hand over and maintain the property fit for the purpose for which it was let.

However many lease agreements deal with maintenance of the property differently. It is advisable to ensure you have read the "Maintenance" clause of the lease agreement carefully to ensure you are aware of your obligations and the landlord's obligations.

Most lease agreements provide that the landlord is responsible to maintain the structure of the property and any electrical, plumbing or electrical apparatus which you have not damaged.

Generally the tenant is responsible to maintain the inside of the property "fair wear and tear" excluded. If the property has a garden or pool, it is common that the tenant is responsible to maintain the up keep of the garden or pool. Remember – it is important to refer to your written lease agreement.

The landlord does not have an obligation to fix every item the tenant deems necessary. Items which render the property unfit for the purpose for which they were let, such as no water / electricity, a burst geyser, non-working oven etc. would need to be attended to by the landlord. However the landlord would not be obligated to fix items such as missing internal keys, blown light bulbs and squeaky doors.

Again, it is important to point out that many lease agreements provide for different obligations pertaining to maintenance – read your specific lease agreement to confirm your responsibilities and the landlord's.

The landlord must maintain the property fit for the purpose for which it was let. If the landlord fails to honour this obligation, you may demand in writing that he attend to the maintenance. The maintenance in question must be a material breach by the landlord such as no water / electricity, a burst geyser or non-working oven. A material breach does not include missing internal keys, blown light bulbs etc.

If the landlord fails to remedy a material breach you should cancel the lease and vacate the property or take legal action.

If you withhold rent, you yourself are committing a material breach and the landlord can take the necessary action to collect the rent - cancellation of the lease, court order eviction or blacklisting on credit bureaux.

No, you have an obligation to pay the proper amount of rent at the proper place and time.

If you fail to pay the last month's rent you are committing a breach of lease and the landlord is entitled to take the necessary legal action including blacklisting on credit bureaux.

Refer to the lease agreement, specifically to any cancellation clause.

If the lease agreement is month-by-month, then a calendar months notice is required to cancel the lease.

If the lease agreement is for a fixed period and there is no cancellation clause, then the tenant can rely his right to early cancellation in terms of the Consumer Protection Act but remember the landlord can charge a reasonable cancellation penalty.

Refer to: CPA Can the tenant cancel the lease early (see wiki article)

In terms of the Rental Housing Act, the tenant and landlord / Property Practitioner must jointly perform incoming and outgoing inspections. This is to place on record any defects and subsequent damage for which the tenant may be liable. 

The incoming inspection does not place any obligation on the landlord to fix any defects.

If the landlord or Property Practitioner does not perform both the incoming and outgoing inspection, it is deemed the property was handed back in good order and the landlord will have no further claim for damages.

However, if the landlord attempts to make arrangements for the outgoing inspection and the tenant fails to respond, the landlord can access the property within 7 days of the expiration of the lease to assess for any damages and apply the costs for repair against the deposit.

The landlord can apply the deposit to any amount due by the tenant - outstanding rent or utilities, reasonable payment for damages to the property (for example: cleaning of carpets, lost keys or remotes and returning the state of the property back to its original state at the beginning of the lease), fair wear and tear excluded.

If during the outgoing inspection, it is established there are no damages, the deposit must be refunded within 7 days of expiry of the lease.

If during the outgoing inspection, damages are noted, the balance of the deposit must be refunded within 14 days of restoration of the property.

If the tenant fails to attend the outgoing inspection, the balance of the deposit must be refunded within 21 days of the expiry of the lease.

The tenant is entitled to all receipts for the cost of repairing any damages

The tenant and landlord cannot contract outside of these obligations. For example, the landlord or Property Practitioner cannot state in the lease agreement that the deposit will only be refunded in 30 days – this would be in contravention of the Rental Housing Act

The essence of a lease agreement is that it is a legally binding contract. A lease agreement is therefore subject to all of the laws that pertain to contracts in general.

The law clearly states that the obligations of the parties to a contract will not be extinguished by the death of either party, unless:

·         the contract contains a clause that specifically states that the contract will terminate upon the death of one or both parties; or

·         the will of the deceased party specifically states that the contract will terminate upon the death of the party in question.  

In most cases, the rights and obligations of the party in question will pass on to the executor of the deceased’s estate. This position was confirmed by the Courts in the well-known case of Lorentz v Melle and Others 1978 3 SA 1044 (T) at 1058C.

This means that if a tenant or a landlord dies, the lease agreement will not automatically terminate unless the lease agreement contains a clause that specifically provides for such termination. In all other instances, the executor will take over the obligations of the deceased party and should be the first point of contact for the other party to the agreement. The rule that applies to all contracts applies to a lease agreement in that the rights and obligations arising from the lease will pass to the heir, as long as the heir accepts the inheritance.

In terms of the National Credit Act, you are entitled to 1 free credit report per year.

To ask for a copy of your free credit report you can call the TPN Helpdesk on: 0861 876 000 or send an email to helpdesk@tpn.co.za

In terms of the National Credit Act Regulation 20 (2) as read with section 72 - you have the right to challenge the accuracy of any information that is held by the Credit Bureau that concerns you and ask the Credit Bureau to investigate the accuracy of any challenged information.

In order to dispute the incorrect information on your profile:

• You will be required to send through a dispute form together with all the necessary evidence. (For example: the lease agreement; statement of accounts; identity document or utility bills) to dispute the incorrect information on your profile. The Credit Bureau makes their decision based on all the credible evidence they receive. The more comprehensive the evidence is that you submit, the greater the chance that the finding will be accurate and fair.
• The supplier will be informed of the fact that a dispute has been logged and will be requested to submit credible evidence to TPN within 20 business days. This is evidence that would substantiate why the challenged information should remain on your profile.
• After 20 business days, TPN is obliged to make a finding based on the evidence supplied by both parties.

To log a dispute you can call the TPN Helpdesk on: 0861 876 000 or send an email to helpdesk@tpn.co.za

The definition of "Fair Wear and Tear" is an important one because it often causes conflict between Landlords and Tenants.

Currently there is no legislative definition of "Fair Wear and Tear", but generally it is deemed to be damage that occurs due to the ordinary use of the premises by a Tenant over the passage of time or the ordinary operation of natural elements.

Some examples of "Fair Wear and Tear" would be the following:

• old, warped window frames, 
• paint peeling on window frames
• paint that has faded in the ordinary course, 
• External doors being exposed to elements 
• plaster that has cracked as a building settles and 
• carpets worn as the result of being walked on. 

Conversely, the following would constitute damage due to negligence and would be for the tenant's account: 

• windows damaged as a result of being slammed, 
• walls damaged due to nails or screws, 
• a key rusting in a lock, due to being left in an outside door and exposed to rain,
• paint discoloured as a result of cigarette or candle smoke, 
• carpets discoloured due to pets or stains and 
• kitchen counters scratched due to cutting. 

Please read our blog article for more interesting information https://mrisoftware.tpn.co.za/blog/what-is-fair-wear-and-tear/

Landlords are often tempted to take to extreme measures when it comes to defaulting tenants, but these measures can have very serious consequences.

In a moment of frustration, it can be very tempting to arrange for electricity or water supply to be suspended, change the lock on the front door, or even to remove certain items from the leased premises, just to give tenants the nudge that they need to perform their obligations. Unfortunately, however, all of the current consumer-friendly legislation aside, in terms of the South African common law, it is unlawful under any circumstances for a landlord to interfere with a tenant’s “peaceful and undisturbed” use of the leased premises, unless correct legal procedure is followed. Such an act is termed “spoliation” and can have very serious consequences for the landlord.

The premise behind spoliation is that it is illegal to “take the law into one’s own hands”, regardless of whether the reason behind such action is based on a valid, lawful claim or not. 

Where an act of spoliation occurs, a tenant has a number of remedies at his or her disposal, including counter-spoliation and applying to either the Rental Housing Tribunal or the Courts for urgent relief.

In the case of counter – spoliation, the tenant may legally immediately take action to remedy the situation, such as restoring water or electricity supply or re-entering the premises, thus defeating the purpose of the actions of the landlord.  The most widely utilised remedy available to tenants, however, is to apply for an urgent interdict, known as a mandament van spolie. 

In the case of a residential lease, this can be done through the Rental Housing Tribunal or through the Courts. 

In the case of a commercial lease, only the Courts may be approached for relief. 

The application is done on an urgent basis, meaning that it can be heard in a matter of days. In coming to its decision, the Court will not take into account the underlying circumstances, only whether the tenant was in peaceful and undisturbed possession of the premises and/or goods at the time, and whether the landlord followed due legal process when taking any action. As such, the landlord will invariably be on the back foot from the outset. Furthermore, where application is made to Court and the Court finds in favour of the tenant, it may order that the landlord pay the tenant’s legal costs which, given the urgency of the application, will invariably be substantial.

In the case of a commercial lease in particular, the tenant may suffer substantial damages as a result of not being able to operate its business. In such an instance, the tenant will be entitled to claim such damages from the landlord. Furthermore, where a landlord locks a tenant out of the premises, in addition to constituting spoliation, the lock-out can also be deemed to be an eviction, and therefore amount to an infringement of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act No 19 of 1998 (“PIE”).

Ultimately, therefore, as frustrating as it may be, it is always advisable to adhere to correct legal process. TPN is always willing to guide clients in the right direction, so as to ensure that the situation is resolved in the correct manner.

Watch TPN’s Video on Unfair Practises for more information. 

In cases where property has been damaged due to hail; floods or tornado’s or any other circumstances beyond the control of the buyer or seller it is imperative to distinguish whether the property has been transferred. 

Dependant on the Offer to Purchase (“OTP”), most OTP's will contain a clause which will determine when risk transfers. In TPN’s OTPs, one can refer to the clause on Possession & Risk which states:

 “Legal Possession of the Property shall be given to the Purchaser on the Registration Date, from which date all benefits and risks in respect of the Property, including the liability of all rates, taxes and levies on the Property, shall pass to the Purchaser, subject to anything to the contrary that may be contained in clause 9.2.”  [Clause 9.2 refers to Vacant Occupation].

Therefore, only when the property has transferred to the Purchaser, will the Purchaser be liable for any damage to the property. Until then, the Seller will remain liable for any damages that may have resulted due to the flooding.