Written for YourProperty
Property Poser’s expert has been approached by a tenant who has not only lost her long-term lease but also the garden and braai area she set about establishing at her own cost.
The reader explains that she rented a dwelling with the understanding that she was to remain there for a number of years. The lease was drawn up for a single year but the tenant was assured that this was standard procedure and that it would merely be renewed year on year.
As a result of the ostensible extended lease period, she set about effecting improvements to the property including the development of a garden and braai area.
To her surprise, she has been given notice that, at the end of the one-year lease, she must vacate the premises. Understandably, she is concerned and wishes to know what her rights are regarding her improvements.
She would like to know if the landlord has a right to withhold her deposit should she choose to remove her young plants and decor from the garden.
According to Sean Radue of Radue Attorneys in Port Elizabeth, the lease agreement should be the reader’s first point of reference regarding her rights in this situation.
“The agreement will often make reference to any improvements made to the rented property.”
Unfortunately, says Radue, these improvements are often recorded without much regard for the tenant and merely become part of the rented property without any compensation to the tenant.
“There is, however, also a fairly good chance that the lease could make provision for the removal of the improvements where it doesn’t cause damage to the premises or where it can be repaired by the tenant.”
Radue says it should also be noted that the regulations to the Rental Housing Act provide that the tenant should maintain the garden and keep it neat and tidy.
“It appears that the gardening done by the reader went above and beyond her duty to keep the garden neat and tidy.”
Depending on the relevant provisions in the lease, the reader may have a claim for useful and necessary improvements, he says.
Radue says luxurious improvements are, however, unlikely to be reimbursed.
“Apparently the landlord’s intention is to use the property for holiday rentals in the near future.”
He says this could have bearing on the current issue, as the arguably luxurious improvements could be considered quite useful in this context.
“As far as the term of the lease is concerned, this is one of the essential items that must be agreed upon by the landlord and tenant.”
From the description of the way in which the lease came about, it could be argued that the intention of the parties was to allow the lease to run for an extended period, says Radue.
“On the other hand, one could make the argument that the intention was altered by reducing the agreement to writing, thereby limiting the lease period to a single year at a time.”
He says this may be moot as the reader is more concerned about removing the improvements, such as freestanding pots and seedlings, than arguing the period of the lease.
“The deposit should be dealt with in accordance with the provisions of the Act, and her nearest provincial Rental Housing Tribunal could assist should the landlord deal unfairly with this aspect.”
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