RENTAL WATCH: Tenants challenge rental increases they believe are not justified due to repairs and maintenance issues not being attended to by the landlord.
Under common law, the landlord is obliged to deliver the rental property in a fit and proper state for the purpose intended; and is further liable to the tenant for any damage caused by a defect in the property leased, “where they have knowledge of such defect, or by reason of his trade or calling he ought to have known of the defect” (Kotze, CJ in Atkins v Delport, 1903 13 CTR 686).
The well-known case courts generally refer to is Hunter v Cumnor Investments 1952(1) SA 735 (C), which confirms the contract of lease principle in Roman-Dutch Law, that the landlord is obliged to repair defects.
The landlord is required “to hand over the premises in a condition fit for the purpose for which they are let, and he or she remains liable to maintain the premises in that condition”.
This was reiterated in Harlin Properties (Pty) Ltd and another v Los Angeles Hotel (Pty) Ltd, 1962 3 SA 143 (A).
If the tenant knew of the defects and the state of disrepair prior to entering into a contract, and accepted the dwelling with the defects, the tenant cannot, under common law, compel the landlord to carry out repairs.
Conversely, implied warranty of habitability is part of our common law and developed by the courts in a few instances, but largely ignored, as in the above prominent cases.
In Cape Town Municipality (Appellant) v Paine (Respondent) 1923 AD 207 it was held “a tenant has a just cause of cancelling the lease if the landlord has not made the necessary repairs to the subject of it to make it habitable”.
In the late 19th century, the court confirmed this common law obligation when it delivered judgment in favour of the tenant: “That it thereupon became the duty of the defendant to deliver to the plaintiff the said house and premises in a safe and habitable condition, and in a fit and proper state of repair” (Alexander v Armstrong (1879) 9 Buch 233, Supreme Court of the Cape of Good Hope).
Here, the court went beyond the “fit and proper state of repair” and included habitability.
In Government of the Republic of South Africa and Others v Grootboom and Others 2000 (11) BCLR 1169 (CC) the court refers to habitability:
“The needs of such people could be met by relief short of housing which fulfilled the requisite standards of durability, habitability and stability encompassed by the definition of housing development in the act.
The legislative action pointed out to the court and the policy documents placed before the court appeared to be postulated on the need for housing development as defined in the National Housing Act 107 of 1997”
When a tenant enters into a lease contract, the dwelling must be habitable, which includes adequate space, protection from the elements, and threats to health and physical safety, while the building must be structurally sound.
This is confirmed in the changes to the Rental Housing Act signed into law in 2014, but which had not become operational.
Recently, a landlord walked into a meeting held by his tenants and berated them for not approaching him to discuss the monthly rental increase of R800.
He singled out certain tenants, embarrassing them by disclosing their personal circumstances.
He said that he had reduced the rentals of tenants who were struggling to meet the increase. He understood the position of pensioners and always demonstrated his good faith by reducing their rentals. This was not in dispute.
The increase was exorbitant, and given the nature of his motivation and the leases, he did not have legal grounds for the increase.
The building and individuals’ flats were well-maintained, and save for some grievances, tenants enjoyed a cordial relationship.
The increase was linked to an increase in levy and municipal rates.
In terms of our law, a notice of rental increase must be unequivocal; in other words, parties must be clear about what is required.
The notice must refer to the provision in the lease; a specific clause that allows for the increase.
A tenant can reject a notice of a rental increase, which is usually presented as an offer, or the tenant can make a counter offer.
A notice cancelling a lease that meets all the legal requirements, once given, cannot be withdrawn. The landlord’s notice was clear and did refer to the lease.
However, the increase in the lease agreements did not specify an amount or a percentage. In our law, the amount or percentage of the rental increase cannot be determined later. It must be definite or certain.
In terms of section 5 (6) (c) of the Rental Housing Act 50 of 1999, the rental increase must be reasonable and such escalation must be included in the lease. This confirms the common law position.
The relevant clause of the tenants’ leases read: “In the event of the monthly levy or rates in respect of the premises being increased, the landlord shall advise the tenant in writing of same and the tenant shall be liable to pay such increase, which amount shall be added to the monthly rental.”
Given the cordial relationship, tenants ought to have made representation to the landlord to negotiate the proposed increase.
Often, direct contact with the landlord is the most meaningful way to resolve a matter. If a meeting fails to yield the result or a request to meet is rejected, tenants may have legal options.
Equally important in such a relationship, is to avoid crossing the line that blurs personal details of their lives with a good tenant-landlord relationship. Intrusive details may lead to a hostile relationship in the event of a dispute.
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 / [email protected] or [email protected]