While both landlord and tenant are required to comply with the terms stated in their rental agreement, or lease, all these provisions must be flexible under extreme circumstances, such as the current Cape drought.
To illustrate this point, consider a clause in a lease stating that the tenant is responsible for the upkeep of the garden. Although the tenant is bound to comply with this clause, they are also bound to comply with the law – in this the current, strict water restrictions. Because these restrictions mean that it is impossible for the tenant to fulfil his obligation as stipulated in the lease, this effectively makes it impossible to enforce this clause. Therefore this responsibility would no longer apply.
This water crisis that Cape Town finds itself in means that landlords need to be reasonable when it comes to clauses in a lease that was signed before the crisis hit.
On the other side of the coin, are landlords required to ensure an uninterrupted water supply to the tenants in their properties, and if so how do they do this?
Landlords are required to ensure an uninterrupted water supply to their tenants as per the Western Cape Unfair Practice Regulations. This means a landlord cannot cut the water supply (without due cause) or cause it to be cut because of negligence.
Regarding the installation of water tanks to store water in the case of water shut-off, this depends on the way the lease is worded. If the lease is silent on the matter – as is likely in the case of a sectional title property such as an apartment or townhouse in an estate or complex – there is no legal duty for the landlord to ensure an uninterrupted water supply to the unit. In this instance, the State is responsible to ensure that “everyone has . . . access to sufficient food and water,” in line with the constitution.
Ideally, tenants and landlords need to communicate and cooperate to find solutions and avoid things spiralling out of control into disputes and legal action.
When trying to work out who needs to do what, in respect of the clauses of the lease, it is worth considering:
- How much longer will the tenant be in the property – when does the lease expire and are they intending to renew?
- How much would it cost to outfit the property to make it more water-efficient or install some sort of water recycling/catchment system?
- And further to that point, how much rent is chargeable and will the costs be recoverable over the long term by means of rent?
- Can the landlord and tenant bear the costs associated with these upgrades – can the landlord afford to pay the costs upfront and can the rent help recover these costs over time?
This drought is one of the worst Cape Town has experienced in living memory, and even when it does eventually end, it may be worth landlords considering the long-term benefits of upgrading the property to be water efficient – particularly as no one can say when this drought will end.
One thing is certain – everyone needs to pull together to cooperate as much as possible throughout this crisis, and no doubt we will emerge on the other side better prepared for the next water-shortage.
IGrow Rentals is dedicated to both its tenants and landlords and aims to foster a cooperative relationship between the two. If, as a landlord or tenant, you have any questions, please contact Karen Grobler from IGrow Rentals on 021 979 2501 or firstname.lastname@example.org.