2014 Aug 11 - Who Pays For Maintenance On A Rental Property?                                                 Port Elizabeth Property First Article

"The issue of who should be maintaining a rental property is an ongoing area of confusion and the source of many disputes," says Colin Fibiger, CEO of Property Network.

Essentially, says Fibiger, the landlord is required by law to ensure the maintenance to the interior and exterior of the leased dwelling. Failure to attend to maintenance of the interior was a violation of the Rental Housing Act and constituted an unfair practice and the tenant could lodge a complaint with the provincial Rental Housing Tribunal.

The Rental Housing Act 50 of 1999 mentions maintenance three times without referring to internal or external sections of the property. Section 13 (4) (c) (iv) states that if the housing tribunal at the conclusion of a hearing is of the view that an unfair practice exists, it may make any other ruling that is just and fair to terminate any unfair practice, including a ruling to discontinue lack of maintenance.

As from the date of any complaint having been lodged with the tribunal, until the tribunal has made a ruling on the matter, or a period of three months has elapsed - whichever is the earlier - the landlord must effect necessary maintenance, (in terms of section 13 (7) (c)). The third reference relates to the minister of Human Settlements regulating, among other matters, maintenance (s 15 (xiv)).

Important to note says Fibiger is that the Act is silent about whether maintenance is internal or external and it can be reasonably assumed as well as under common law that
the landlord is indeed responsible for maintaining the interior and exterior of the leased property.

It is not unusual however to find a clause that reads, 'The tenant shall be responsible for maintenance, repair and upkeep, as the case may be, of the interior of the property, including all ceilings, all walls and floors, all doors and windows, all cooking, heating, cooling, lighting, plumbing and air-conditioning equipment in or on the property.'

Parties may also agree that the tenant will be responsible for maintenance, repair and upkeep of the exterior of the property. In other words, the tenant and landlord contracts out of the common law with the tenant taking over what the landlord is ordinarily required to do.

In ETE's Warehousing and Sales CC v Bowsink Investments CC 2000 (3) SA 833 (E), the court held that in the absence of an agreement contracting out of the common law, the landlord was obliged to provide the leased property in a condition reasonably fit for the purpose for which it was let, and thereafter to maintain the premises in such condition.
The written lease is a contract and the landlord and tenant can mutually agree for the tenant to take over the landlord's common law responsibility.

Our courts have confirmed the lawfulness of the tenant assuming the landlord's common law responsibility of maintaining the interior, but are strict in interpreting a clause in a lease 'transferring' this common law duty to the tenant.

Tenants and landlords are adviced to carefully read the leases presented to them to ensure they are fully aware of any special provisos made regarding maintenance and upkeep

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