Written for Property Poser

Our Property Poser panel this week deals with a rather unusual situation involving a jacuzzi and some fish.

A reader explains that her family is renting a property, which includes a jacuzzi on the premises. When they moved in, this hot tub was not in working order and the reader fixed it out of her own pocket.

Unfortunately, some time ago, her children caught a few fish and decided to release them into the jacuzzi. Luckily, the reader found out about this before any damage was done and she could clean it properly.

Coincidentally, however, the landlord also discovered the fish and, after the offending creatures had been removed, he saw fit to close the jacuzzi up without any notice to the tenants.

The reader is very unhappy about this, especially in light of the fact that it was not even in working order when they moved in and had only been operational due to her outlay. She would like to know whether she has grounds for her discontent.

“As in many of our discussions relating to leases, we do not know what the exact terms of the lease agreement between landlord and tenant are,” says Charl Crous from Du Toit Strömbeck Attorneys in Port Elizabeth.

Crous says the agreement should always be examined first, be it in writing or not. “Of course, a written agreement will cast far more light on such issues than an oral one, where the terms may differ according to each party.”

The tenant has a standing obligation to use the leased property in a responsible manner, says Crous, ensuring that it can be handed back to the landlord in the condition in which it was received, fair wear and tear excepted.

“Our reader, as the lessee, would also be responsible for the actions of her family, and any damages caused by its members.”

Crous says the question remains whether the landlord was within his rights to prevent the tenant from using the jacuzzi.

“Unless one of the terms specifically states that the use of the jacuzzi is excluded from the leased property, it would appear that the landlord may be in breach of the agreement by preventing access to it, whether there was damage or not”.

A standard way of dealing with a situation where damage occurs would be to give the tenant the opportunity to repair the damage and restore the property to its previous state, says Charlotte Vermaak from Chas Everitt in PE.

“Failing this, the landlord may do the necessary repairs, with due notice to the tenant, and recoup the costs from him or her.”

Although it appears that no actual damage was incurred in this instance, Vermaak says the agreement between the parties would once again dictate how the matter is to be handled.

“Even though the tenant went to the expense of fixing the item, was it in the terms of any agreement with the landlord? If not, it may have been done on the risk of not being reimbursed.”

Vermaak questions whether the jacuzzi incident would warrant the tenant taking further legal steps.

“Our reader should perhaps approach the landlord and request that access to the jacuzzi be granted. She should also consider whether this problem is serious enough to jeopardise their business relationship.”

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