Written for YourProperty

A tenant has asked the Property Poser panel to wade through a difficult situation involving his rental property, which has been flooded twice.

The reader explains that the second flooding was so bad that he had to call the fire brigade to pump out the water. He now wishes to know whether he has a claim against his landlord for damages to his furniture.

Schalk van der Merwe from Rawson Properties in Somerset West, Cape Town, says the lessor has the duty to give the lessee the beneficial use and enjoyment of the property.

“The regulations to the Rental Housing Act provide that the dwelling should be fit for human habitation at the time of the commencement of the lease.”

While the premises may, indeed, have been in order, the next regulation states that the dwelling should also be maintained in such a state during the course of the lease, says Van der Merwe.

“It’s doubtful whether this is the case if the premises were flooded so easily, especially for a second time.”

Van der Merwe says the reader does not mention what happened after the first time the property was flooded; whether he alerted his landlord and whether any action was taken.

“What he could have done in that instance was to request that the landlord takes the necessary steps to repair the problem that resulted in the flooding.”

The regulations would have assisted the reader as he could have insisted that repairs be carried out within 14 days or another agreed upon period, says Van der Merwe.

“The landlord’s failure to effect the necessary repairs could be considered an unfair practice under the Rental Housing Act.”

Furthermore, depending on how severe the first flooding was and the provisions of any written lease agreement, he may have been entitled to place the landlord on terms, should he have failed to fix the leaking, says Van der Merwe.

“He could then have cancelled the lease agreement and potentially claimed damages from the landlord.”

The reader could also have opted to do the repairs himself without consulting the landlord, says Grant Hill of Miller Bosman Le Roux Attorneys in Somerset West.

“He may have a claim as the repairs to stop the flooding would have been necessary repairs and not simply of a luxurious nature.”

In light of this, if the landlord does not reimburse him, he may have a claim based on the enrichment of the landlord, says Hill.

“Our reader’s specific question however relates to the damage caused to his furniture by the flooding.”

Again, he does not clarify whether any notice was given to the landlord regarding the flooding, says Hill.

“We also don’t know what the time frame was between the first and second incident.”

Hill says if the tenant had given notice of the initial flooding and the landlord had not done anything about it, he should perhaps have opted to look for other premises to minimise the risk of further damage.

“However, this may be the time now to ask the landlord to effect the necessary repairs.”

Should he fail to do so, Hill says there may be cause to refer the dispute under the Rental Housing Act to the nearest provincial tribunal.

“He could seek to cancel the lease agreement and claim damages, such as costs arising from repairs to the furniture that has already been damaged.”

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Issued by:

Full Stop Communications

Coetzee Gouws
082 575 7991
041 368 4992

On behalf of:

Rawson Properties Helderberg & Miller Bosman Le Roux Attorneys