Written for Property Poser
A landlord has approached the Property Poser panel with an interesting question regarding the ownership of an air-conditioner that was installed by the tenant in his rental property.
The reader tells us that his tenant has installed a split-unit type, where the refrigeration unit is affixed to the exterior of the property, with a pipe leading to the air distribution unit on an interior wall.
The air-conditioner was installed without the landlord’s consent and he wants to know whether the unit now forms part of the rented premises.
Sean Radue of Radue Attorneys in Port Elizabeth says a property is generally rented in a certain condition and should be maintained in more or less the original condition throughout the lease period.
“This is usually subject to the provisions relating to inspection and repair, and excludes any damage that may result due to fair wear and tear.”
He says it is quite usual to address such an issue in the lease agreement but that the reader does not mention what the relevant provisions are.
“The agreement may state that the original condition of the property is to be restored at the expiration of the lease period, in which case, the tenant should effect the removal of the air-conditioner and proper repair.”
The landlord will, in terms of the lease agreement, usually have certain remedies, which may include a claim of specific performance, says Radue.
“In other words, he could compel the tenant to abide by the provisions of the lease agreement and restore the condition of the property to the required condition.”
He says an alternative would be for the landlord to claim damages to the amount of money required to restore the condition of the property.
“By claiming the funds, he could see to the restoration of the property himself, thus maintaining control over the process.”
Similarly, the Rental Housing Act also provides that a landlord may claim compensation for damage to the property, says Radue.
“The Act also provides for the return of the property in a ‘good state of repair’.”
He says the lease agreement should be examined to determine whether there is any provision relating to the installation of air-conditioning units or the like and whether such installation and/or the installation method is subject to approval by the landlord.
“Should this not be permitted, the tenant would be in breach of the lease agreement and the remedies set out therein should be considered as the landlord need not necessarily wait for the termination of the lease period.”
According to Radue, the lease agreement could specifically address the affixing of items to the leased property in various ways.
“The landlord may, for example, be given the option to retain the ‘improvements’, with or without compensation to the tenant.”
Without any provision specifically addressing this aspect and in the absence of any “new” agreement, it would be unlikely that the landlord could merely retain the air-conditioner as now forming part of the leased property, he says.
“This is because there is also the aspect of unjustified enrichment to consider, with the landlord having been enriched to the detriment of the tenant.”
Radue says the landlord should look to the provisions of the lease agreement, together with those of the Act, to determine his remedies.
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