Tenant Landlord disputeWe urgently need ...

Asked by Lexi on 13-10-2022 15:29:18
Question posted in the Landlord Tenant Law category relating to Gauteng

Tenant /Landlord dispute

We urgently need legaladvice regarding our ongoingSituation. My partner and I moved into an apartment in Sandhurst, Sandton in March 2020.Initially the landlords (we have never met them, but they own the company CSA Properties - Whom are the managing agents for our apartment - as far as we know there are a few of the Directors whom own the apartment). We have only dealt with a secretary of the company.The rent immediately increased prior to occupation  - we asked them to paint the apartment and sort out the very old stained carpets.The rent went from R13,000 to R15,000 because they “painted” and “cleaned” the carpets.When we moved in there was NO INSPECTION DONE.The state of the apartment was SHOCKING - the carpets were soaking wet and the apartment was only painted HALF Way with UNDERCOAT that looked more like nursery school watercolour paint. Paint was also messed EVERYWHERE  It looked TERRIBLE. Even worse than the old peeling paint that was there previously. We notified them and they promised to make it right.We were told to get quotes and deduct from Rent. ON APPROVAL.Covid came that same month and everyone's lives stopped as you know. We reminded them but didnt push the issue. We stayed here for the incredible view over the city. Breathtaking.Fast forward to 2022 earlier this year when we once again started querying ACTIVELY about this and all the MANY wrong things but alas, no response except that they wanted to increase rent once again. Hiding behind the excuse that they have not increased in 2 years - never mind the property market caving in, occupation or should I say vacancy numbers at an all time high, never mind the fact that everyone went through a pandemic, nevermind they are lucky to have us as tenants as we always paid (sans couple of 1000 owed from pandemic days) even though they haven't kept their part of the deal. We were now asked to pay R15,900 per month. VERY overpriced and not market correct.We got increasingly ticked off that we were in year 3 of living there and we have yet to see something being done.Numerous e-mails were sent all surrounding these issues1.    Re-negotiate rent:  We sent them  MANY photographic examples and proof and research of units in our building FULLY FURNISHED going for R12,500-R14,000. That is R3000 to 2000 less WITH FURNITURE AND PAINT AND WOODEN FLOORS They declined any form of negotiation and said its worth much more than we are already paying which is - R15,900.

2.    We asked for a statement of our deposit.They refuse to give us one nor tell us where it is. We know it is a criminal offence to not put in interest bearing acc and refusing to disclose where our money is and to withhold access to view the statements. We even told them that.

3.    Our apartment's main bedroom is filled with mold Numerous times we sent emails with photos to  plead with them to DO something. It is a huge problem that is not being addressed. We tried remedy it with vinegar, etc. Didn’t work. My child has suffered extensivelydue to the mold. We had to buya nebulising machine TWICE because first one wasn't Strong enough for her severity and usage. She also has an asthma pump and is on chronic bronchodilators because of her chestAnd breathing difficulties. She also often experience nose bleeds, middle ear and throat infections. My partner also suffers extensively with sinusitis and breakingNo response.IGNORED.4. Our ongoing battle to paint the apartment, fix what has to be fixed and what we haven't just fixed ourselves in the interim. Also deal with the rotten stained carpets I had to cover with huge expensive rugs. One minimal response to send maintenance for the little issues (toilet seat, handles, cupboard fittings, you know not important things). Ignore all other queries, grievances.

Then, August we decided ENOUGH is ENOUGH and sent another 10 mails then finally gave notice and stopped paying rent. We were sent threatening e-mails and e-mails of demand.We demanded right back. asking for a statement of our deposit which by now should be R17,900 and We also sentthem an invoice of the amount o date we have OVERPAYED because they have been in breach of contract since the beginning.

So Sept rent and Oct not paid and we still haven't gotten a response from them except threats to immediately pay our outstanding rent and a couple of thousand we owed from earlier this year. Plus prepostorous interest that they added. Which I also saw is against the law.The above facts we set out nicely in an affidavit and had it stamped by the clerk of the criminal court in Randburg. We sent that together with an invoice of plus minus R76,000 that they owe us (see invoice)- worked out based on all the overpayed rental months and our deposit plus interest.It is now october 13. Nothing. No communication.We DO NOT KNOW what to do next.But their non response makes us scared. What are they doing? Planning? Maybe they find a loophole and we are on the street tomorrow.Please help.

Message from the Lawyer

Posted by Att. Patrick on 13-10-2022 16:20:31

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. 

Do you mind if I take a moment to review your question? I will come back to you shortly!

In the interim, what outcome do you envision at this point based on what you've said above?

Att. Patrick

Message from the Lawyer

Posted by Att. Patrick on 13-10-2022 16:40:56

Regarding your first point, if the landlord refuses to negotiate the rental with you, and you can't reach an agreement as to the rent, then you really should consider leaving the leased property as soon as the lease comes to an end. Just ensure that you read your lease agreement because there might be a provision which says that you need to give the landlord a months' notice if you do not intend to renew the lease agreement. But if I was you, I would leave. You can't force the landlord to see reason or negotiate with you. If the landlord wants to be hard about it, then they will lose you as a tenant. 

Regarding point 2 - I think that you should lodge a complaint with the Rental Housing Tribunal along the lines that the landlord is refusing you information about the deposit. This is the correct course of action. https://www.tshwane.gov.za/sites/Departments/Housing-and-Human-Settlement/pages/gauteng-housing-rental-tribunal.aspx

Regarding point 3 - unfortunately, you can't sue the landlord about this. But you can 'vote' with your feet and leave. In fact, the mould issue is serious enough to cancel your lease agreement and leave early. You would need to first send the landlord a breach letter calling upon the landlord to remedy the situation, and if the landlord didn't, then you could cancel the lease and move out. 

Regarding point 4 - You, unfortunately, can't force a landlord to maintain an apartment. Bizarre. I know. Again, if the landlord doesn't, then you must not renew the lease. 

If there is no agreement that the landlord can charge interest in the lease agreement, then the landlord can't charge interest, let alone massive interest. 

Moving forwards - I think that you need to vacate the leased premises as soon as you can in order to get out of this situation. If your lease is up for renewal, then vacate on the last day of the lease agreement. If your lease has already expired, then vacate at the end of October. Find somewhere else. If your lease only expires in March next year, send the landlord a notice telling the landlord that you are exercising your rights in terms of the Consumer Protection Act to cancel your lease agreement and that you will be vacating. 

I'm sure that your landlord has used your deposit to off-set against September / October's rental. So I highly doubt that you will ever see that again. 

I don't know how successful you'll be in claiming the R76k from the landlord. I think that you can use the R76k demand as a good means of getting out of October's rental (and if there is any other rental owing from August or July, that as well) but I don't know if you will get the landlord to pay you anything. 

If you had to buy a rug to hide water stains, it is your rug and you can keep it. 

I don't know why you say that you are on the street tomorrow. The landlord can't kick you out of the apartment. Only the sheriff of the Court can evict you, and only if the sheriff has a "warrant of ejectment" and a court order authorising your ejectment from the apartment. 

My advice - move to another place, one where you are happy, and tell the landlord to use your deposit to cover arrear rental and if there is any other rental owing that the landlord must write it off against your invoice for the R76k.

Message from the client

This has really been bugging me and made me loose interest in your answer as it is in fact not legally correct - you say a landlord cannot be forced to do maintenance when in fact they can. There is a law citing that - 2014 Amendment Act that it is indeed a criminal offence if maintenance is not done. As is not attaching a defect list before occupation

As is being notified of mold and them not doing anything about it. There is a total of 3 criminal offenses you are not really advising me about. All you really replied was things I already know. I didn't need personal advice. I wanted LEGAL advice. Confirmation of what LEGAL rights we do have. So in any case we haven't moved out and they have not responded but then TODAY someone comes to the door with our security asking to come inside. I refused. He said his name is Felix and he is from CSA PROPERTIES. He refused me his surname eventually it came out that he is Amos - Felix Amos - one of the owners - who has up to now been coming to our apartment as "maintenance". Never introduced himself as an owner. This is back in 2020 when they still DID maintenance. In any case he says we owe rent and we do not communicate. I was incredulous telling him we have sent many many email correspondence and he refused to acknowledge seeing any. Which is a lie. We track the emails. He handed me an invoice for R68,000 and left. His attitude was very slack and laid back but sort of chuckling under his breath making fun of what I was saying. Instead of flat out laughing in my face he was very demeaning. Nodding towards the security guard every now and then as if they have a secret I dont know about. He also laughed off my reference to the mold and them owing us money. So now what do we do? We are not going to just move out like you suggest. We want to know our rights. Ehat do we do with this next? Send all rmails again? Get a physical lawyer? Drop off all the docs and make them sign???

Message from the Lawyer

Posted by Att. Patrick on 02-11-2022 23:22:41

Subsection 4B(11) is a general clause setting out requirements regarding the condition of a dwelling by providing that a landlord has an obligation to provide the tenant with a dwelling that is in a ‘habitable’ condition. The definition of ‘habitability’ has been inserted in the Act and it provides that ‘habitable’ has a corresponding meaning. ‘Habitability’ refers to a dwelling being safe and suitable for living with specific reference to the following factors –

1) adequate space;

2) protection from the elements and other threats to health;

3) physical safety of the tenant, the tenant’s household and visitors; and

4) a structurally sound building.

Non-compliance with the requirement of habitability is a criminal offence under s 16(aB), which provides that a person who fails to fulfil his or her obligations as landlord in terms of s 4B(11) respectively will be guilty of an offence and liable on conviction to a fine or imprisonment not exceeding two years or to both.

This is the limitation. This does not say "if the landlord doesn't do general maintenance, it is a criminal offence!"

To be quite honest, I think that you should refer all of these disputes to the Rental Housing Tribunal in your City and request the Tribunal to assist the parties in resolving the disputes. You can do this without a lawyer. 

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