Ask a lawyer – Can tenants be held liable for dead gardens during water restrictions?
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?
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.
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.
Who is Marlon Shevelew?
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 email@example.com anytime for more information on these services.