During extreme weather cycles – such as record-breaking heat waves, hail and flash floods – physical damage to a property can be unavoidable. Managing director of Tenant Profile Network, Michelle Dickens, clarifies who is liable in this instance: “The risk and liability involved with immovable property will always be that of the owner,” she says. “The owner is thus liable for all damages caused by vis major.”
Vis major is a legal term referring to a superior force which is outside of human control. It includes acts of nature or acts of God, such as lightning, earthquake, flood or violent storms.
Damage to the structure of the property, unless caused by the gross negligence of the tenant, is the responsibility of the owner. “This is also the case with permanent fittings, such as cupboards, baths, toilets or curtain rails,” says Dickens. “If the tenant causes a fire in the kitchen through gross negligence and in so doing burns down the house, the blame and therefore liability for the damage falls squarely on the tenant.”
Cilna Steyn, managing director of SSLR Inc., a property specialist law firm, shares some valuable and practical advice when determining liability.
“The question to ask is: who caused the damage? If the damage was caused by the tenant, it is the tenant’s responsibility to fix it. If it was caused by the landlord, the landlord is liable for the damage. If the damage is nobody’s fault, the property owner is liable for repair of the damages,” she says. “Another way of looking at the problem is: who has the insurable interest? A tenant cannot take out insurance over a property whereas a landlord can. Therefore, tenants cannot be held liable unless they were grossly negligent.”
How does this contrast with a property that is sold? If a property is sold but occupation has not yet taken place and the property is destroyed due to no fault of the seller, the sale is not terminated. The buyer remains liable for payment of the full purchase price.
Every set of circumstances where a dispute arises regarding damages to a property is unique and liability can therefore only be determined on a case by case basis. Some real case scenarios that TPN and SSLR Inc. have dealt with in recent months include:
Fire: the tenants manufactured the illegal drug methamphetamine in the kitchen and burnt down the entire kitchen as a result. Not only were the tenants acting illegally but they were grossly negligent and therefore liable for the damages.
Flood: the tenant placed a top-loader washing machine on a trolley in the garage. The washing machine toppled over and flooded the house. The tenant is negligent as it is reasonably foreseeable that the washing machine could fall off the trolley in mid-spin. The tenant is therefore liable for the damages.
Wind: the window panes were smashed when the window slammed shut as a result of sudden gale force winds. The landlord is liable for the damage as this is a case of vis major.
Contractor damage: a guest of the tenant at a business park had their car window broken by the garden service who was mowing the lawn when a stone shot out from under the mower. The contractor caused the damage and was liable; the contractor’s insurance paid for the damage.
Hail storm: the entire west side of a house had windows broken in a hail storm. The landlord was liable for the damages as this is a case of vis major where neither the landlord nor the tenant could control the weather.
The simple question to ask is: whose actions caused the damage? Was it the tenant, the landlord or a contractor? If it was nobody’s fault as with vis major, the landlord is liable as the owner of the property.
TPN was started in 2000 as a Tenant Profile Network and is now a registered Credit Bureau. The company developed the only trusted rental payment profile database of its kind in South Africa. The TPN database combines information from TPN and other highly valuable sources, such as Experian and TransUnion, to provide the most comprehensive behavioural profiles on tenants and prospective buyers in the property industry today.