Written for YourProperty

The Property Poser experts have been approached by a reader who has been renting a property that seems unfit for habitation.

The tenant has lived there for six months and encountered a number of problems, including a complete lack of built-in cupboards. He also reports that the front door and internal doors cannot close properly.

A broken lounge window that was supposed to be replaced was never fixed and the reader has suffered two burglaries as a result. He adds that the toilet leaks and electrical problems have caused the casings of several light fittings to melt.

From the reader’s explanation, it is unclear what complaints or requests have been made to the owner, says Stiaan Jonker of Smith Tabata Attorneys in Port Elizabeth.

“It’s also not clear what undertakings were given when he occupied the property.”

Jonker says factors such as whether a joint inspection was done – and whether the landlord undertook to correct the issues noted – will determine his remedy.

“The Rental Housing Act makes provision for the joint inspection of a dwelling prior to occupancy to ascertain whether there are any defects or damage that must be registered and/or fixed by the landlord.”

The property may well have been in its current state at the time of inspection and the tenant may have accepted it as such, says Jonker.

“For example, built-in cupboards, or the lack thereof, are fairly obvious to spot and a concession on the rental could have been reached.”

In the absence of information relating to negotiations, discussions and inspections, only broad outlines can be given as to what steps the reader can take, says Jonker.

“The landlord is obliged to repair it to the condition agreed upon, whether in the lease agreement or after the inspection.”

At the very least, it should be in a condition reasonably fit for the purpose for which it is let, says Jonker.

“The landlord must also ensure that all statutory requirements are complied with, such as the Occupational Health and Safety Act, which requires a valid electrical compliance certificate.”

According to Susan Chapman from Rawson Properties PE Platinum, it appears that many of the issues experienced make the property unsuitable for habitation.

“Our reader should put the owner on terms as far as repairs are concerned and, should he fail to perform properly, consider cancelling the lease.”

If the agreement is in writing, Chapman says the document should be examined to determine the manner in which such terms are put to the owner and how to go about cancelling it.

“If the tenant considers fixing certain problems himself, he should be aware that it doesn’t necessarily mean he can claim compensation from the owner.”

Chapman says such a claim is often specifically excluded in the lease agreement.

“Should compensation not be excluded, the tenant may have a claim against the landlord.”

This would be based on the grounds that the landlord is being unjustifiably enriched at the expense of the reader, says Chapman.

“A tenant who has improved a property with the owner’s consent – by installing, for example, built-in cupboards – would be entitled to compensation for such costs when the lease expires.”

Chapman says the owner may be entitled to the improvements, but not necessarily to receive them without paying compensation, as this could be regarded as unjustified enrichment.

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