In terms of section 9 of the Western Cape Unfair Practice Regulations, both landlord and tenant may not conduct any activity which is prohibited under the lease or the applicable law. Moreover, all lease provisions should be interpreted, and applied, with all relevant circumstances in mind.
Therefore, regardless whether the lease states that the tenant is responsible for the swimming pool or garden, the tenant’s duty to actively comply with such a provision - and the extent by which such a tenant would be expected to carry out such maintenance - must still comply with the law. In particular, in this context the Water By-Laws and water restrictions currently in force.
If the property concerned is entirely reliant on the water grid and doesn’t have its own alternate water source the pool would, of course, be unusable, and indeed the tenant would thus be compelled to contravene the water restrictions in order to comply with his or her obligations. This in effect renders the duty to maintain (both garden and swimming pool) impossible to perform and therefore such a clause would be unenforceable.
It is clear that the current water crisis demands an open-minded approach to lease provisions which were negotiated, drafted and signed prior to the drought escalating to its present dire status. Since the lease parties, for the most part, are unlikely to have anticipated that the pool would be unusable (unless tanks of water are delivered to the property at significant cost), the intention that the tenant would be responsible for maintaining the pool should fall away.
I agree with the proposal that (finances permitting) owners ought to install tanks and grey water systems at their properties. However, there is widespread confusion at present as to whether owners are obliged to do so, or whether tenants should foot the bill for such installations. The problem is exacerbated by the fact that few, if any, leases address this issue.
My thoughts on the matter are, briefly, as follows:
In terms of section 8(2) of the Western Cape Unfair Practice Regulations landlords are obliged to ensure that the tenant’s water supply is not interrupted, regardless whether such an undertaking has been included in their lease. The effect of this implied undertaking is twofold:
Landlords may not unilaterally terminate the water supply without lawful cause and they may not be complicit or negligently responsible for the tenant’s water supply being cut off.
In terms of section 8(1), however, where landlords are obliged by law, or in terms of the lease, to supply water to the tenant, he or she must provide it - that is, the landlord would be obliged to install a tank and grey water plumbing system if the lease specifies it.
However, if the lease is silent on the matter, there is no express legal or constitutional duty on landlords in general to ensure that tenants have a continuous water supply. This duty falls to the State, which is mandated to ensure that “everyone has . . . access to sufficient food and water.”
It is clear at this stage that the drought will place severe financial strain on the Western Cape Government. Indeed, it is highly unlikely that the province is capable
on its own of avoiding the arrival of the impending ‘Day Zero’. It follows that, although landlords are not in general compelled by law to install tanks and the like at their properties, it is important to remember that Cape Town isn’t presently experiencing a water shortage, we’re suffering a water crisis.
Every individual, including all landlords and tenants, need to proactively engage and negotiate openly and reasonably, and work together to find solutions without resorting to needless, progress-hindering disputes.
In particular, Capetonians need to be creative and think outside the structure of their contractual arrangements. In assessing how to deal with the landlord and tenant’s respective obligations during this crisis, a suggested starting point would be to consider the following:
- How long is left on the lease?
- How much is the rent relative to the water installation cost?
- What are the parties’ respective financial means?
Landlords should also balance their tenant’s need for water with their own need to upgrade the property to water crisis-ready (since the drought could last for years). Parties to leases which don’t address these key issues should determine what a reasonable apportionment of the total liability/cost between them would be to resolve the issue, and record their agreement in writing.
Consider the following example:
- A landlord and tenant are two months into a one-year fixed term lease (therefore 10 months left on the lease).
- The lease is silent on water tank and grey water system installations.
- The monthly rental is R10 000 per month.
- The landlord is not in a position to afford to pay for the installation.
- The tenant urgently needs the water system installed and feels that it’s unfair to have to pay for a long-term installation out of his or her own pocket when already paying rent.
A proposed Solution
The tenant could offer to pay a reduced rental of R9 000 per month for the remainder of the lease term, in exchange for which the tenant will also pay the full (or most) of the, say, R10 000 cost to install a water tank and grey water system at the premises.
In this way, the tenant will recoup the initial cost in full (or whatever proportion they agree is fair) from the landlord by setting it off against the rental. The landlord then pays for the installation in instalments and acquires full ownership of the installation when the tenant moves out. The premises can then be let again in future with its new off-the-grid crisis appurtenances.
In short, there is no clear answer to many queries regarding the drought - particularly in relation to garden and swimming pool maintenance. I can only suggest that everyone works together to assist one another in whatever fair, reasonable and practical way suits a given property.
Marlon Shevelew and Associates Inc