A tenant has the right, at the inception, to receive and occupy a leased property that is not only fit for the condition it is let but also habitable. The landlord has a duty to maintain the property in a habitable condition throughout the period of the lease.
There are certain steps a tenant must take before concluding a lease.
A tenant should check if there is water and electricity on the property and do a thorough inspection to establish any defect. If the property forms part of a sectional title, share block scheme or home owners’ association, the tenant has the right to ask if the owner is up to date with the levy.
In addition to this critical enquiry, the tenant should request permission to view the body corporate conduct rules to gain an idea of what rules may affect the tenant’s rights or needs.
A tenant should avoid committing to a lease if the property is under renovation or being repaired or told that repairs will be done. It will not matter if the owner or agent gives a verbal undertaking that the renovation or repairs will be done by the time the tenant takes occupation. If the lease is presented without such an undertaking, this ought to be a warning that the lease must not be signed.
A joint incoming inspection with the landlord or the landlord’s representative is absolutely necessary. This is a requirement of the Rental Housing Act 50 of 1999. Any defect or repair identified during the joint inspection must be noted and should be attached to the lease agreement. This record is invaluable regarding the state of the rental property as a source document for the exit joint inspection. It would determine who is responsible for any defect or damage and ultimately the refund of the tenant’s deposit.
A clause that states the tenant must inform the landlord in writing of any defect within seven days of taking occupation does not absolve parties of their obligation of carrying out an incoming inspection jointly.
Signing a lease with a person who claims to be an agent can be problematic. Before signing the lease, arrange a meeting with the landlord or to speak with him or her. Find out from the agent what type of mandate is in place with the landlord. The mandate explains whether the agent is responsible for a managed lease or a one-off letting commission for the marketing of the dwelling and sourcing of a tenant (procurement lease).
Once the tenant is procured, the relationship that is formed is between the client (principal/landlord) and the tenant, even though the agent acted for the client.
A tenant who viewed a property and afterwards signed a lease, paid the damage deposit and a month’s rental in advance, was unaware of the consequences. He met a person on the property who was undertaking certain repairs and was told the property would be available for occupation within two weeks.
When the tenant moved his belongings to the property, he discovered serious defects. There were no taps in the bathroom and no electricity supply to the property. He immediately contacted the “agent” who had carried out the repairs. The “agent” claimed had he installed the taps and once all the repairs were done, he handed the keys to the owner. As for electricity, the municipality removed the meter because the previous tenant illegally connected electricity. The owner was aware of the illegal connection and did not object to the new lease agreement being concluded.
The tenant, upset and angry, contacted the owner, who indicated that it might take several months before the electricity problem could be resolved. She did not have the money to pay the arrears charges and the fine she had to pay for the previous tenant’s illegal tempering with the electricity meter.
The tenant demanded the owner comply with the lease, by ensuring that the leased property was in a habitable condition. After several attempts to resolve the deadlock, the owner’s response was that the “maintenance man” did not have authority to conclude a lease on her behalf.
The tenant may cancel for breach and sue the owner or demand the owner perform on the lease. Should the tenant decide to compel performance of the lease, he is entitled to a rental reduction. The tenant may approach the provincial Rental Housing Tribunal for a rental remission and to seek an order to compel the landlord to have the electricity restored and carry out the essential repairs.
The nature of the breach decides if the court or the tribunal will allow the innocent party the right to cancel and to be free of his or her obligation without being held liable for not performing.
Dr Sayed Iqbal Mohamed is the chairperson of the Organisation of Civic Rights and deputy chairperson of the KZN Rental Housing Tribunal. He writes in his personal capacity.
For advice, contact Pretty Gumede or Loshni Naidoo at 0313046451 / pretty@ocr.org.za or loshni@ocr.org.za