Ask a lawyer – Is the landlord liable for a tenant drowning?
A child recently drowned in a pool at a rented property. What is the legal position of a landlord if there is no swimming pool net or fence?
Below is our current standard lease clause relating to swimming pools:
“If there is a swimming pool on the property, the tenant shall keep the swimming pool in a clean and sanitary condition and shall provide all the necessary chemicals and other substances that may be required to comply with his obligations in terms of the lease. The tenant shall at his own expense keep and maintain the swimming pool pump and the swimming pool cleaner and any other equipment connected to the pool in good order. If any of the pool equipment breaks due to the tenant’s negligence, replacement of the equipment will be for the tenant’s account. The tenant shall top up the water level so that the filtration system does not run dry, and keep the filter and pump free from obstructions and contamination.
In the circumstances set out in your e-mail, I do not believe that the landlord can be held delictually liable for the loss of life suffered at the property.
This is so, notwithstanding the fact that the landlord has not provided a pool net or ensured that the pool is adequately fenced off. In this regard, I note that the landlord can only be held liable in the event that he/she bore a legal duty to prevent the loss, and negligently failed to do so.
With reference to the above, I am of the respectful view that the landlord bore no legal duty in the circumstances. In this regard, I note that the test for the existence of a legal duty has been expressed by the Constitutional Court in the case of Minister van Polisie v Ewels, as follows:
“Our common law employs the element of wrongfulness (in addition to the requirements of fault, causation and harm) to determine liability for delictual damages caused by an omission. The appropriate test for determining wrongfulness has been settled in a long line of decisions of this Court. An omission is wrongful if the defendant is under a legal duty to act positively to prevent the harm suffered by the plaintiff. The test is one of reasonableness.
A defendant is under a legal duty to act positively to prevent harm to the plaintiff if it is reasonable to expect of the defendant to have taken positive measures to prevent the harm. The Court determines whether it is reasonable to have expected of the defendant to have done so by making a value judgment based, inter alia, upon its perception of the legal convictions of the community and on considerations of policy. The question whether a legal duty exists in a particular case is thus a conclusion of law depending upon a consideration of the circumstances of the case and on the interplay of the many factors which have to be considered.”
In the circumstances, I note that the tenants accepted the property in its particular state (i.e. knowing that the pool was not fenced off), and therefore assumed the certain risks when they accepted possession of the property.
Furthermore, one would assume that the tenants, being aware of the fact that the swimming pool posed an inherent risk of drowning for small children, would have taken reasonable steps to request the landlord to provide a pool net or a fence, and cannot in the absence of a request to the landlord to provide these items, now seek to impose a positive duty upon the landlord.
Insofar as your request for contractual provision is concerned, I am of the view that a general clause limiting all liability would serve more purpose than a clause dealing specifically with the swimming pool, as such a clause would operate to limit the landlord’s liability for all loss suffered by the tenant, his family and guests.
I would therefore suggest a clause worded along the following lines:
The lessee hereby indemnifies the lessor and/or his agent/s against any loss and/or damage that may be suffered as an incident of his/her possession of the property, and which may arise as a result of any negligent act or omission on the part of the lessor and/or its agent/s.
The lessee hereby specifically indemnifies the lessor and/or his agent/s against any loss or damages that may suffered by the lessee, his/her family, his/her servants, or guests who may attend at or utilise the property from time to time, irrespective of whether such loss or damages arise as a result of any negligent act or omission on the part of the lessor and/or its agent/s.
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 firstname.lastname@example.org anytime for more information on these services.