Consumer / 11 September 2019, 07:00am / Sayed Iqbal Mohamed
RENTAL WATCH: There is no doubt that the landlord would be in breach if he installed a separate water meter without the tenant’s consent, since the rental includes the water charges in terms of the lease agreement.
Should the landlord cancel for breach and start eviction proceedings, he is unlikely to succeed.
The tenant’s legal challenge would be that the installation of the separate water meter was done without consent, and was therefore a unilateral change to the lease, since the rental was inclusive of the water charges.
A unilateral variation of a lease contract is not binding and would constitute an unfair practice in terms of the Rental Housing Act 50 of 1999.
Similarly, the tenant would be in breach if she agreed to pay for the water charges, but failed to do so.
The landlord can cancel the lease when the tenant fails to settle the water bill, after being given the opportunity to remedy the breach of non-payment. Her failure or refusal to pay is an unfair practice.
A landlord who demands the cost of water consumption from his tenant four years later can be problematic. Can the landlord hold the tenant in breach if she refuses to pay the water charges?
Would the landlord have legal grounds to cancel the lease in the absence of a written clause that may entitle the landlord to claim the amount he paid unintentionally, and paid consistently for four years? Is the tenant in breach if she refuses to pay her landlord the water consumption charges?
Let us take the case of a tenant who pays on the turn when her landlord presents her with an invoice that shows the rental for the month and water charges.
The landlord indicates the amount she needs to pay for the water consumption after deducting his payment of the rates and other charges.
Four year later, the landlord realises that through a debit order with the municipality, he in fact paid a substantial amount towards the tenant’s water consumption charges. He now threatens to cancel the lease, if she fails to make the full payment of the amount she was liable for.
Can the landlord cancel for breach if the tenant fails to pay the “outstanding” amount?
Is it a breach?
The diligent tenant paid her rental in full and on time as she did all other charges due reflected on the monthly invoice.
She did not question the amounts the landlord wrote on the invoice every month for four years.
She paid in full and on time.
A clause stating that the landlord has the right to cancel should the tenant fail to pay his or her municipal charges for the water and electricity consumption on time, affords the landlord the right to cancel.
However, after four years of not once informing the tenant that she short-paid, can such a clause be invoked?
The Rental Housing Act requires that the grounds for cancellation for residential dwellings must be stipulated in the lease, and may not constitute an unfair practice:
“The landlord’s rights against the tenant include his or her right to terminate the lease in respect of rental housing property on the grounds that do not constitute an unfair practice and are specified in the lease, (section 4(5)(c)).
The landlord would be able to cancel the lease for arrears rentals or failure to pay municipal service charges through a cancellation clause.
This clause allows a party to cancel the lease agreement if the other party is in breach.
What if the lease did not contain a cancellation clause, but the landlord cancelled the lease anyway?
The landlord or tenant can lodge a complaint with the rental housing tribunal that will have to decide whose defence is legally sustainable.
The tribunal will also have to con- sider the absence of a cancellation clause that ought to disqualify the landlord from cancelling in the above example.
The landlord will have to produce convincing evidence that the tenant failed to perform in terms of the lease agreement by failing to pay the water charges in full.
That this failure amounted to a sub- stantial breach of the lease agreement, and despite the demand, the tenant failed to rectify the breach.
It would be a breach if the landlord sent a letter of demand after the first month or so that the tenant short-paid and must settle the amount immediately or within 20 days in the case of a lease, subject to the Consumer Protection Act.
In the absence of a written clause that in some way enables the landlord to claim the amount he paid uninten- tionally, and paid consistently for four years, the tenant may not be in breach.
Parties may be able to resolve the dispute through mediation at the tribunal.
Alternatively, the tribunal may have to hear the evidence of the parties and based on the law, provide an appropriate decision.
To avoid a dispute, the landlord must provide his tenant with a copy of the municipal bill every month.
If the tenant is required to pay directly to the municipality, the onus is on the landlord to ensure that the tenant pays regularly and in full.
The challenge is when there are tenants sharing the municipal services and the account is metered from a bulk meter.
The lease agreements must be clear about the proportionate share each household or tenant has to contribute.
A further stipulation should be included in the lease that would allow the landlord in consultation with the tenants to adjust the amount should the need arise.
Each tenant must be given the municipal bill so that there is no confusion or suspicion about the total amount and the allocation to each tenant of his or her liability.
Dr Sayed Iqbal Mohamed is 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 on 0313046451; [email protected] or [email protected]