CONSUMER: Who is responsible for maintenance of and repairs to a dwelling: internal, external and structural repairs? Responsibilities for maintenance and repairs are defined in a written lease or can be ascertained from the common law. Under common law, the landlord is under obligation to place the dwelling in a condition reasonably fit for the purpose for which it is let. He or she is also obliged to maintain the dwelling and carry out repairs during the entire lease period.
The landlord has to ensure the following is in good and safe working order while the tenant occupies the dwelling: electricity, plumbing, ventilation, doors and windows. If the landlord let the dwelling with a geyser, cupboards, stove, refrigerator and other appliances, it is the landlord’s duty to ensure these are in working order at the time of entering into a lease and during the entire period.
“It is trite that a lessee is entitled to full use and enjoyment of the property during the full term of the lease. The respondent is therefore under a duty to deliver and maintain the property in a condition reasonably fit for the purpose for which it has been let. The duty includes the obligation that lessees shall not be exposed to any unnecessary risk to life or property and that lessees shall occupy the premises with safety” (Mpange v Sithole 2007 (6) SA 578 (W)at paragraph 28).
External
The landlord is also required to maintain and carry out external repairs. External repairs include damage to roofs, windows, doors, plumbing, repair works and gutters. The landlord also has a legal duty to keep every part of the external dwelling clean and free of rodents, dirt, garbage or other offensive material. The landlord is therefore required to maintain the property both internally and externally at all times.
In other words, the dwelling must be in “a good state of repair” so that the tenant is able to have undisturbed use and enjoyment. Parties can agree that the tenant will take over certain duties of the landlord. A tenant can undertake to maintain the premises and thereby relieve the landlord of his or her common-law duty.
Parties enter into an express clause in a lease agreement that the tenant will be responsible for maintaining the dwelling and carrying out repairs to the inside of the dwelling or to both the inside and outside, “fair wear and tear excepted”.
It is important for the tenant to look for a “maintenance clause” before signing a lease.
Where the landlord is responsible and subsequently fails to carry out the necessary repairs or fails to maintain the property in a proper condition, the tenant has several remedies available.
Similarly, the landlord can also take action against the tenant for failing to maintain the dwelling and to carry out repairs if the tenant contracted to take over the landlord’s obligations. In the event of a dispute, the condition and circumstance of each lease contract can give rise to different interpretation, and the courts would be the appropriate body to provide clarity.
The tenant must notify the landlord of any repair that needs to be carried out, preferably in writing. Should the landlord fail to respond, the tenant has the option of cancelling the lease agreement for breach.
Alternatively, the tenant can place the landlord on a 14 days’ notice to carry out the necessary repairs, inform the landlord that should he or she fail to respond, the tenant would attend to such repairs and deduct the cost from the rental. Should the cost of repairs exceed the rental, then to set it off against the landlord’s claim for rentals.
Terms
The landlord can also place the tenant on terms in the case where the tenant had contracted to carry out repairs and to maintain the dwelling.
Should the tenant fail to carry out the repairs, the landlord has a claim for damages for both the costs incurred to carry out the repairs (actual loss), and also the loss suffered for not being able to let out the dwelling (consequential loss).
For now, the landlord is under duty to maintain the dwelling, both internally and externally, throughout the lease period, unless he contracted out of his common-law obligations. It is advisable for tenants and landlords to seek legal advice.
Mohamed is the chairperson of the Organisation of Civic Rights and deputy chairperson of the KZN Rental Housing Tribunal. For advice, contact Pretty Gumede or Loshni Naidoo on 0313046451/ pretty@ocr.org.za or loshni@ocr.org.za
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