Written for YourProperty
The Property Poser panel has received a query from a tenant regarding a broken oven in his rental property.
The reader says the repairs would be rather costly and asks whether he would be permitted to replace the oven rather than fix it and deduct the costs from his rental payments.
Schalk van der Merwe from Rawson Properties in Somerset West, Cape Town, says the reader has not made it clear whether this is a typical residential lease scenario or a commercial one.
“This makes a difference as the Rental Housing Act applies, in general, to residential leases and sets out certain rights and duties for both landlord and tenant.”
It sounds as though the reader possibly accepts a portion of the responsibility for the oven repairs but not for replacing it entirely, says Van der Merwe.
“We are not told how the oven broke but it more than likely occurred during the lease, as this is something that should have been addressed as part of the initial inspection of the premises under the Act.”
Similarly, the Act provides for the premises to be reasonably fit for habitation, says Van der Merwe.
“Although, it’s debatable whether a working oven would swing this aspect one way or the other if the rest of the premises is suitable.”
Van der Merwe says the regulations to the Act place a burden on the landlord to effect certain repairs to electrical and other systems, as identified in the lease agreement.
“The reader should therefore take a close look at his lease to determine where liability for the oven lies.”
Should the landlord be responsible, the repair must be carried out within 14 days of being notified, says Van der Merwe.
If the leased property is commercial in nature, the lease agreement is the first place the reader should look to determine liability, says Grant Hill of Miller Bosman Le Roux Attorneys in Somerset West.
“The lease should address aspects such as the replacement and repair of appliances.”
Hill says it would not be advisable for the reader to merely take an irregular step outside the lease agreement or, if applicable, the Act.
“Something like deducting repairs from his rental payments could trigger a remedy on the part of the landlord, particularly in the case of a commercial lease.”
Depending on the purpose of the premises, a working oven could form an integral component of the lease, says Hill.
“A lease agreement often provides for rental to be paid without deduction, so withholding the rental could constitute a breach.”
Similarly, in the case of a residential lease, if the agreement provides that the landlord must repair the oven, the reader doing so and withholding rental payments could constitute an unfair practice under the Act, says Hill.
“This would thus allow the landlord a remedy.”
Hill says the landlord should be able to properly satisfy himself as to the necessity for the repair and the associated cost before making a decision on whether or not the oven should be replaced.”
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