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Ask a lawyer – Can tenants be held liable for dead gardens during water restrictions?

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Q

Where do we stand with regards to an outgoing inspection where the lawn/garden has now died and the tenant can turn around and say “sorry I am not allowed to water”? (And in most instances I know that the garden has been looked after.)

The same applies to filling of pools. A number of my landlords are installing well points and pool covers but not all can afford this.

Do we add something new in the lease agreement?

How do we prove this to the landlord who insists on deducting “damages” from the damages deposit?

A

The current water restrictions which are in place have created an unfortunate situation where many tenants have been placed in a position where they are unable to lawfully comply with their obligations to maintain gardens and pools at the properties that they rent.

I note that the question you have posed has become extremely common among estate agents, as many of your colleagues are faced with a situation where the landlord expects to be compensated for either a garden that has died, or a pool that requires additional costly maintenance due to the water levels not being properly maintained.

Quite simply, the answer is that the water restrictions have given rise to impossibility, and the tenant therefore cannot be expected to perform (or be held accountable) where the landlord has not taken any steps to ameliorate the situation.

The landlord, as the owner, must therefore install a well point or purchase a pool cover so as to place the tenant in a position where he/she can properly maintain the garden or pool, and thereby discharge his/her contractual obligations imposed by the terms of the lease.


Gardening in the age of water restrictions


To expect or demand otherwise, would be to put the tenant in a position where he/she is forced to contravene the water restriction By-Laws, which will obviously attract sanction for the tenant.

I furthermore do not believe that any reasonable clause can be inserted into your lease agreement which would have the effect of compelling the tenants to perform in circumstances where they are lawfully prohibited from doing so, short of making it the tenant’s responsibility to purchase a pool cover or install a well point at the property concerned.

Should your landlord therefore not be willing to accept the argument that it is impossible for their tenants to perform (as outlined above), unless they are placed in a position where they are indeed able to do so, it is my considered view that you will be faced with a myriad of claims being brought before the Rental Housing Tribunal by disgruntled tenants.


Here’s how to install your own rainwater harvesting system


Who is Marlon Shevelew?

Marlon Shevelew, director of Marlon Shevelew and Associates.

Marlon Shevelew is the director of Marlon Shevelew and Associates Inc, a  law firm specialising in rental property, sectional title, contractual, consumer and company law. The firm is the recipient of more than 45 international property law awards. Marlon is the current author of PayProp’s rental documentation and preferred rental property attorney to the Institute of Estate Agents South Africa (IEASA), the Rental Housing Tribunal Western Cape, presenter of the Advanced Residential Property Law Seminar endorsed by the University of Cape Town and the director of the top rental property law firm in the country, according to several international publications. Marlon also created the unique Rental Retainer Club and RentDoc which offers clients affordable legal fees for rental property-related matters. Marlon is contactable on marlon@marlonshevelew.co.za anytime for more information on these services.

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3 COMMENTS
  • Firoza Lambat 16th January 2017

    We have been receiving a utility bill from Ekhurleni but electricity was not charged as they had nobody to read the meters .Now i received this huge bill and i am suppose to pay this.
    Also i took over the rental of this property and this back log of the electricity bill is not my problem
    How do i get out of this

  • M Thurtell 4th July 2017

    The housing tribunals do not comply with constitutional requirements applicable to fair, public trials. It is difficult to see how they comply with any such features as described PRINCIPLES AND GUIDELINES ON THE RIGHT TO A FAIR TRIAL
    AND LEGAL ASSISTANCE IN AFRICA by the The African Commission on Human and Peoples’ Rights. It must be borne in mind that the requirements apply whether the first instance proceedings are by a forum, court or tribunal. if its determination is legally enforceable then it is bound by the constitution, its open justice requirements etc. these are minimum requirements (see e.g. ICCPR general notes and treaty body decisions) and apply to administrative bodies as well. Speed is not a justification for infringing rights. The constitutional and international human rights norms are based on minimum requirements developed from the amporo remedy.

    I have submitted a complaint to the SAHRC. Enough of pop-up “tribunals”.

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