Tenant holds rental to ransom for repairs

Written for YourProperty

This week the Property Poser experts assist a reader who is withholding her rental payment in an effort to force her landlord to effect repairs to the property.

The tenant explains that she rented a house at the beginning of this year but the agent representing the landlord didn't conduct an inspection of the property to check for defects or problems.

One month after taking occupation, the reader sent through a "snag list" but to no avail. Since then, nothing has been repaired despite considerable time having passed.

She explains that one of the rental conditions was the payment of one and a half months' rental.

Presumably in desperation and in an endeavour to make the landlord effect the necessary repairs, the reader decided to withhold payment of her rental, thus "eating into" her deposit.

The result of this move is that the landlord, via his agent, has now formally demanded payment and restoration of the deposit and has also threatened the tenant with eviction should she not timeously comply with his demands.

The reader has tried e-mailing the contact person listed on the correspondence that was sent to her but has not received any response.

When considering a problem such as this, two aspects are important: the lease between the parties and the Rental Housing Act, says Schalk van der Merwe from Rawson Properties in Somerset West, Cape Town.

"The lease may require a deposit to be paid, which was duly done in this case."

Van der Merwe says the deposit serves a specific purpose, which is to provide the landlord with peace of mind that a fund exists to enable certain repairs once a tenant vacates the property.

"The Act requires the parties to inspect the dwelling concerned before a tenant takes occupation."

This is to determine the extent of any repairs that may be required and also the landlord's responsibility to make the necessary repairs, says Van der Merwe.

"Where there are defects that won't be addressed, they will merely be noted so that the tenant isn't held responsible for them at the end of the lease period."

Van der Merwe says the list of defects should be attached to the lease agreement.

Grant Hill of Miller Bosman Le Roux Attorneys in Somerset West says the reader has not explained the circumstances surrounding the lack of inspection by the agent or landlord.

"We are also not told whether the reader inspected the dwelling prior to taking occupation."

It would appear that the matter has escalated unnecessarily, says Hill, with each party taking steps he or she thinks are correct in the circumstances.

"Despite not having the full account of what has transpired, it's quite clear that the parties are in dispute as to their rights and obligations."

Hill says the tenant is entitled to a dwelling that, at the inception of the lease, is fit for occupation. Depending on the severity of the defects she has mentioned, this may not be the case.

"The regulations to the Act also provide for a continuing maintenance obligation on the part of the landlord to effect repairs agreed to under the lease."

The repairs required by the tenant may fall under such an obligation, says Hill.

"Should the parties not be able to reach an amicable resolution, it may be useful for our reader to approach the Rental Housing Tribunal for assistance and refer the landlord's conduct as an unfair practice."

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