Landlords charging for additional services in South Africa – what you need to know

Typically, landlords cannot add charges or cut services without the tenant’s consent, unless the lease specifically allows for it or an amendment is agreed upon.

This view was outlined by an attorney in the Property Practice Group, Deonay Scholtz, who followed a recent case which she says made it “prudent for both landlords and tenants to carefully review and understand the terms of their lease agreements.”

This includes “any provisions relating to services provided, charges for additional services, and any conditions under which such services may be altered or discontinued,” she added.

Brief background

A lease agreement is a mutual contract where a landlord allows a tenant temporary use of a property in return for rent.

According to Scholtz, both parties must adhere to the agreement’s terms and cannot alter them without mutual consent.

Scholtz said that the landlord’s duties include ensuring that the tenant can access and peacefully enjoy the property. Additional services like cleaning or gardening can be included in the lease, with any fees for these services agreed upon in the lease or a later addendum.

The case

A case between Bodies Under Construction CC and Others v Permasolve Investments (Pty) Ltd was recently heard in the Western Cape High Court.

For over a decade, Bodies Under Construction had been leasing its premises from Permasolve. Permasolve installed a generator on the premises which the gym used to continue to operate during load-shedding, without any additional charges or levies.

The parties had no agreement on the payment of extra fees or charges for using the generator. According to the lease agreement, the gym was to pay a comprehensive fee covering all costs associated with leasing the premises.

Several months after installing the generator, Permasolve demanded that the gym pay an additional fee for the use of the generator, the failure of which would result in the gym’s disconnection from it.

The ruling and analysis

“The Court held that the gym’s use of the generator was so closely connected to the use of the premises as a whole that the gym had a quasi-possessionary (a legal concept related to possession, but not full ownership) right to use the generator,” said Scholtz.

“The Court further held that Permasolve’s actions resulted in an unlawful disturbance of the gym’s use, and ultimate possession of the premises even though ‘possession’ in this sense related to a non-physical thing – being electricity,” she added.

As a result, the Court ordered Permasolve to reconnect the gym to the generator.

“The essence of this matter is that a lessor generally cannot unilaterally charge for additional services or take away existing services without the lessee’s consent, unless there’s a provision in the lease agreement, or the parties reach an agreement through a later addendum to the lease which allows such changes,” said Scholtz.

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