As the Western Cape continues to brace for day zero, many questions have been raised about how the water crisis affects the rights of tenants and landlords. Both parties have contractual obligations to fulfil as part of their lease agreements, but what happens when these become impossible because of circumstances outside of our control?<\/p>\n
According to Cilna Steyn, director of SSLR Attorneys and advisor to the Rawson Property Group, a drought of this severity is classified as an Act of God under South African Common Law. As such, both parties are indemnified against claims made by one another for damages suffered as a direct result of the crisis.<\/p>\n
\u201cTo put it simply, nobody can be held responsible for not fulfilling an obligation if the drought has made that impossible to do,\u201d said Rawson’s Jacqui Savage.<\/p>\n
For tenants, that means the lack of water supply can\u2019t be used as a convenient excuse to cancel a lease, penalty-free.<\/p>\n
\u201cAny lease that falls under the CPA \u2013 can be cancelled by the tenant with twenty business days\u2019 notice, subject to reasonable penalties,\u201d said Savage.<\/p>\n
As stated above, a tenant may not hold a landlord in breach of the lease agreement due to non supply of water. It\u2019s an Act of God \u2013 the landlord can\u2019t be held responsible \u2013 so early cancellation penalties will still apply.<\/p>\n
Likewise, landlords can\u2019t blame tenants for failing to maintain items that require access to water.<\/p>\n
\u201cThings like gardens and pools are typically the tenant\u2019s responsibility to maintain,\u201d said Savage, \u201cand under normal circumstances, tenants have to foot the bill for any repairs arising from their neglect. Of course, water restrictions now make watering gardens and backwashing pools impossible, which means landlords can\u2019t hold tenants responsible for damages that occur as a result.\u201d<\/p>\n
That doesn\u2019t mean landlords are powerless to protect their investments, however, or that tenants can completely ignore their maintenance responsibilities and claim \u201cAct of God\u201d.<\/p>\n
\u201cThere\u2019s a lot you can do to prevent drought damage that doesn\u2019t require doing the impossible,\u201d said Savage. \u201cTenants are still expected to take reasonable measures to prevent unnecessary damage, including complying with restrictions and collecting greywater for strategic use. When it comes to bigger issues like dealing with stagnant pool water and protecting dry pool pumps, there\u2019s a dual responsibility for landlords and tenants to find workable solutions, together.\u201d<\/p>\n
Drought damage isn\u2019t the only issue tenants and landlords face, however \u2013 there are cost implications that need to be considered as well.<\/p>\n
\u201cIn many cases, water and utilities are included in monthly rental,\u201d said Savage. \u201cWith water tariffs rising so steeply, landlords can\u2019t be expected to just absorb this cost. Depending on the wording of the lease, most agreements make provision for municipal tariff increases to be passed on to the tenant as long as the landlord can provide proof of the higher charges.\u201d<\/p>\n
This knife cuts both ways, though: should day zero arrive and water supply gets entirely cut off, Savage said landlords can\u2019t continue to charge tenants for services they no longer receive. Tenants would be within their rights to negotiate a reduced rental amount to account for the reduced utilities charges that their landlord would be paying on their behalf.<\/p>\n
\u201cThe key is really just for everyone to be as fair and as understanding as possible,\u201d says Savage. \u201cThe law is there to protect us, but if we act with empathy and work together to the best of our abilities, we can get through this crisis without needing to resort to costly legal intervention.\u201d<\/p>\n