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Tenants, you cannot withhold your rent

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Your landlord is an idiot – all your friends have heard you say this a million times. Some of your friends know that he hasn’t fixed the motor on the electric gate (something he promised to do in May), or that your bathroom floods every time you use the shower due to leaky pipes – you reported this to him three years ago and didn’t make too much of an issue as you had just moved in.

Some of your more radical friends have even suggested you hardball him: “Withhold your rent until he fixes the problems,” your bestie has advised, “he’ll quickly send the contractors your way.”

The only snag is that if you try this, you will be falling foul of the law.

“The Rental Housing Act is very clear on this,” says Andrew Schaefer, MD of national property management company, Trafalgar. “It requires all tenants to pay their rent on time and in full, and it says that not doing so is a violation of the rental agreement which may entitle the landlord to cancel the lease.”

Still, while the approach of your friend to force your landlord’s hand is wrong, your landlord has responsibilities to you, too.

3 bargains your landlord has to uphold

  1. He has to hand over the premises to you in a reasonable condition and in a good state of repair;

  2. he has to ensure that you have “undisturbed use and enjoyment” of the premises and that the electricity, plumbing, ventilation, doors, windows, air-conditioning, and any appliances on the premises are kept in good working order; and

  3. he has to maintain the property at all times. Some tenants will agree to take on certain responsibilities, such as mowing the lawn or cleaning the pool, but ensure this is in the maintenance clause of the rental agreement.

“And tenants are not helpless to do anything about it if the landlord does not hold up his end of this bargain,” says Schaefer. “For tenants to take action, though, there must be a problem that is not merely inconvenient, but actually interferes with their proper use and enjoyment of the property.

“If there is such an issue, the first thing the tenant needs to do is advise the landlord (directly or through the managing agent) in writing, and give him a reasonable period to rectify the problem or get someone to carry out whatever work is needed. A good rule-of-thumb is to allow 14 working days.”

My geyser burst – do I wait for a green light?flooded-home

According to Schaefer, if your landlord does not attend to the problem within this time, as the tenant you have the choice of whether to cancel the lease or attend to the problem yourself. Just please keep all the receipts and cash slips as proof of cost and instruct your landlord that you will be deducting this amount from the rent due. Or, if you end up paying more on the repairs than your actual rent, deduct this from your water or electricity account. If you are on prepaid electricity, though, you will have to inform your landlord that he has to pay back the balance to you or, if you don’t need the money right away, take it out of the following month’s rental.

Schaefer cautions that such decisions should never be made arbitrarily and without proper communication. “Tenants should really try to let the landlord or his agent know what they intend on doing, and hopefully get him to agree before they go ahead, as there is then much less likelihood of a month-end or ongoing dispute about the rent.

“The exception, obviously, is if there is an emergency like a burst geyser or an electrical fault and the tenant needs to take immediate action to prevent further damage to the property – but again, he will need to produce receipts to justify any deduction from the rent or claim for reimbursement from the landlord.”

Schaefer also notes that the nearest Rental Housing Tribunal is the appropriate escalation channel for any dispute that cannot be directly resolved between the tenant and landlord.


Contact the various tribunals here

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david.steynberg@gmail.com

David A Steynberg, managing editor and director of HomeTimes, has more than 10 years of experience as both a journalist and editor, having headed up Business Day’s HomeFront supplement, SAPOA’s range of four printed titles, digimags Asset in Africa and the South African Planning Institute’s official title, Planning Africa, as well as B2B titles, Building Africa and Water, Sewage & Effluent magazines. He began his career at Farmer’s Weekly magazine before moving on to People Magazine where he was awarded two Excellence Awards for Best Real Life feature as well as Writer of the Year runner-up. He is also a past fellow of the International Women’s Media Foundation.

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6 COMMENTS
  • Denis 6th December 2016

    I have had the misfortune to attend a “Workshop” at the Trafalgar offices. The topic “maintenance” under the new Sectional Titles Management Act. I left the “workshop” unimpressed and feeling that the workshop was nothing more than “Fear Mongering”. As the implementation of the STMA took foot my suspicions were proven.

    Reading this article I am left with the same conclusion.

    I think it is irresponsible and negligent to encourage a tenant to make a deduction from rent due. The tenant has multiple remedies at their disposal. To place themselves at risk to be evicted due to a questionable deduction is just plain irresponsible.

    Lets deal with the 3 bargains:

    I note the absence of any reference to certain sections of the Rental Housing Act, Act 50 of 1999 and or the Unfair Practices as legislated by the provinces, to assert the authors version. I invite the clarity.

    1 This is a relative statement. “what represents Reasonable Condition”. A very large section of the population reside in DIY Zinc shelters in informal settlements and may find a ZOZO hut with not windows or running water very luxurious. I invite the author to clarify.

    2. Is the author proposing that the communal cooking and laundry facilities are for the exclusive use of one tenant in a complex. Furthermore, is it the authors contention that all rental units require electricity, plumbing, ventilation, doors, windows, air-conditioning, and any appliances to be a reasonable rental unit. Please clarify.

    3. I am intrigued, Is it the authors version that the landlord should also wash the floors, vacuum the carpets, wash the dishes, laundry the dirty clothing and groom the dog. I invite the author to read section 7(2)(c)(g)(h) and (j) of the Gauteng Unfair Practices Regulations of 2001 read in conjunction with Section 15 of the Rental Housing Act and invite their comment.

    Recently on CNN the debate around “Fake News” has been raging.

    I now understand the topic.

    I close with, is it too much to ask that facts are checked and or tested prior to going to print.

    In my view this is a very poor article and contains incomplete, inaccurate and irresponsible text.

      • Denis 7th December 2016

        Hi David

        I will fully reply to your reply later on tonight.

        I must however point you directly to your “Act” (http://www.gov.za/sites/www.gov.za/files/30863_340.pdf). I submit this is only an invitation for comment and has in fact not been enacted / promulgated and is not. I invite your proof.

        Thank you

        Denis

  • Denis 8th December 2016

    David

    I have taken the time to reflect on the article and the debate.

    Upon reading the article I found it to be offensive with a distinct tone that depicted all landlords as unscrupulous and even slumlords. It promotes conflict between landlord and tenant and improperly attempts to empower the tenant with “Bargaining Power”.

    I am now lead to believe the article is based on “Law” that does not exist.

    The fact that this is apparently from the mouth from the MD of a leading property management enterprise is equally annoying.

    Just as annoying is your thinly veiled attempt to take the conversation into another direction.

    I am alarmed that Mr Schaeffer has not contributed to this debate and invite his participation.

    Finally I do not think that it is unreasonable to expect an apology and invite same.

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