Question posted in the Landlord Tenant Law category relating to Western Cape
Good day,
We recently moved into a home which we are renting. The owner of the home is the CFO of the real estate agency and she had one of the employees let the place on her behalf while she was travelling.
Based on the images on the listing the home looked good. However we can now see that these images were probably taken a while ago when the condition of the house was better. That being said we did view the home physically when the public viewing was scheduled. We did a quick walk through the house and we did notice some cosmetic issues but we assumed when we spoke with the owner these could be remedied.
We proceeded with the application, paid the deposit and first months rent. On the day of moving in my partner went to do the in-going inspection and upon closer inspection there were a number of issues with the place. We wanted a place with a garage that was a must on our wishlist and the home did have a garage, however on the day of moving in they said the garage doesn't open. The garage door was also very dented. General condition of the outside was that it looks to have not been painted for a while, there was leakage from the garage roof onto one of the support beams with clear water damage. The light fixtures on the outside some work however they are either broken fittings, covers and the wiring is exposed to the elements. The rain water gutter drains are full of sand ands bricks which means drainage is very poor to non existent. We then noted that there are various plumbing pipes coming out of the ground around the house, all the covers had been broken these are rodding eye pipes used to clean blockages from the drain and sewage lines which was now completely open around the house. The worst was one at the side of the house outside the kitchen where is was clear toilet paper being flushed down the toilet together with whatever else was pushing out.
Inside the house almost all the doors had been damaged from what looks like being punched. The burglar guards are all rusty and some are loose, the sliding door was jammed. We found that the extractor fan was not working as well as the oven. There was various damage the kitchen drawers and cabinetry. The shower door did not close, some of the taps in the house and shower where not working properly. Toilet seats were a bit old and peeling. Paint in some areas of the inside needs upkeep.The kitchen tap was loose and the undersink cupboard board was either damaged by water or weight.
All in all there are a number of issues pertaining to maintenance that appear to have been neglected. We feel mislead about the state of the home. We have provided images of all of these issues as far as we could to the leasing agent who assured us this has been attached to the lease in-going inspection. The owner has made an effort to repair some of the issues thus far, such as replacing all the doors inside, new taps, fixing the shower door, sliding door, the garage door has been repaired and is working and the plumbing issues have been resolved.
We however find this process to be an issue in terms of the fact that contractors have been here constantly since we moved in. It is noisy and disruptive to work. More work still needs to be done. The oven has still not been repaired we are going on 3 weeks of occupancy, we use the oven a lot for cooking and this has been a massive inconvenience. The property was also said to have prepaid water which we then found out was not connected, this had to be done as well.
We are questioning whether the property was in a state that can be considered maintained for normally wear and tear. Over and above that we moved into a home which had toilet sewage pushing out of the pipes around the house. The plumber came and looked at it a day after we moved in and then was only able to come a week later to fix it, I'm not sure if this meets the needs of health and safety. The oven still does not work, the property was advertised as having a stove and oven, had we known it had all these issues we wouldn't have chosen to stay here however we are now caught waiting for these issues to be fixed.
We have decided to break the lease and have provided notice to vacate, however allowing them to find a replacement tenant so as to not lose our deposit to cover their lost rental income. They are still imposing a penalty due to ending the lease early.
We would like to know what our rights are in this situation as the ad and condition of the property delivered was misleading to us and has made our life living here unpleasant. Is there any grounds for asking for a reduction on rental? Is there any grounds to be able to vacate the property immediately and not be liable for subsequent loss of rental income and receive or deposit in full? Should they have the right to still impose a penalty fee?
What should we do in this situation, let it play out? or do we have some recourse in terms of reduced rental, being able to leave immediately or any type of rental refund?
Your assistance and advise would be highly valued and appreciated.
Message from the Lawyer
Hi there and thank you for your question,
I am a practicing attorney based in South Africa and I will assist you with your question. Please feel free to ask as many follow up questions in order to clarify your question. If you have a new question, you must please open a new thread.
Please keep in mind that our discussions is for general information purposes only. Our engagement on this website does not create an attorney-client relationship.
In terms of section 14 of the CPA, you are entitled to terminate your lease agreement by giving the landlord 20 business days written notice. This works out to 4 weeks notice. The lease will then terminate and you will have no further obligations in terms of the lease agreement.
However, also in terms of the same section the landlord is entitled to charge you a reasonable cancellation penalty for the early termination. This penalty is really designed to cover the landlord for any losses they might suffer as a result of your early termination. If you find a replacement tenant for the property, and if the landlord doesn't actually incur any further costs as a result of your termination, then the probability that the reasonable cancellation penalty is NIL is actually pretty good. But if the landlord does suffer some losses, then the reasonable cancellation penalty would be a month or two rental.
Industry standard, and indeed a rule of thumb, is 2 months rental ... but this could go up or down depending on what factors are at play.
I'm not too sure how to reconcile the fact that you are upset about the advert and the quoted condition of the property but then on the other hand you say that you did a walk through of the property before you signed the lease. Surely you would have seen most of these issues before agreeing to take the lease?
Also, if your landlord has fixed most of the issues in the last 3 weeks, those issues would then have been resolved and your ability to complain about them kinda falls away. This is because the condition of the property which the landlord makes available for rental does not need to be perfect. There could (and often are) many issues with a property. The Rental Housing Tribunal will not force a landlord to fix these "smaller issues". They will however make a landlord fix a leaking roof ... but that's about as far as they will go.
The idea is that you should inspect the property before signing a lease agreement, and then make an informed decision: are you getting a property in the condition that you would like it to be in compared to the rental that you are being asked to pay.
Q: Is there any grounds for asking for a reduction on rental? --> Yes, everything that you've mentioned above counts. All the issues. But you would need to raise all of these things with your landlord in order to convince him to reduce the rental or the penalty (if you are proceeding with the termination). If the landlord refuses, then you are stuck.
Q: Is there any grounds to be able to vacate the property immediately and not be liable for subsequent loss of rental income and receive or deposit in full? --> The only way to do this would be to cancel the lease based on fraudulent misrepresentation, and nothing that you've explained leads me to believe that you would succeed in this. So my initial knee-jerk reaction to this is No. However there is nothing stopping you from giving the 20 business days' notice and then leaving immediately. You would still be on the hook for the rental though to the end of the 20 business days.
Q: Should they have the right to still impose a penalty fee? --> Unfortunately, Yes. But if you can set the lease aside based on the fraudulent misrepresentation argument, No.
Q: What should we do in this situation, let it play out? --> If possible, get the landlord to fix the issues and then stay there. After all, if the landlord fixes the issues that you complain about then you've got a nice place. If the landlord is refusing to fix any further issues, then give the notice and leave. You can then focus on arguing about how much all of these issues (like the open sewer) should reduce the reasonable cancellation penalty.
Message from the client
I do hear what you are saying and agree with the line of thinking as well as the legal aspect you have provided. We did see some of the superficial issues when we viewed the place. However, it is impossible to view a house in detail while there are other people also viewing. The main issues we are aggrieved about was the sewer pipe issues which were only visible on the day we were moving in, the fact that the garage door couldn't open (this has been repaired) and the fact that the place was advertised as having an oven and stove however the oven is still not working. The sewer issue meant we did not stay at the property for the first week, until the plumber came, due to the fact that every time we used the toilets it would push out into the yard. Can we request that a week of the rental be removed from the invoice?
How should we proceed with the oven issue as this a misrepresentation in our eyes as they would have had to do an outgoing inspection for the prior tenant but did not pick this up prior to us moving in?
Thank you
Message from the Lawyer
Can we request that a week of the rental be removed from the invoice? --> Definitely, yes. You can request that relief. You must just ensure that you justify it to the landlord so he would almost "be forced" to say yes, if you know what I mean. Explain your reasons thoroughly.
Regarding the misrepresentation, if you wanted to go down this line you would need to cancel the lease as a whole and you would need a material misrepresentation... something that goes to the heart of the lease agreement. I don't think that an oven not working is sufficient.