WARNING TO TENANTS WHO DAMAGE PROPERTY

9 Jan 2013

2 April 2013


A High Court decision has issued a warning to tenants who damage property and leave without repairing it.


There has recently been a big increase in cases against tenants, says Clarke. “A recent TPN report has shown that only 68% are now paying on time and instances of damage to properties are rising.”

Landlords in South Africa have at times felt that courts are overly sympathetic to the rights of tenants, even when they have behaved in such a way as to break their lease agreements.

This is according to Tony Clarke, managing director of Rawson Properties, who says in recent years landlords may have the impression that courts in their endeavour to comply with the constitutional right of citizens to have “access to adequate housing”, have been too lenient.

However, Clarke says a recent High Court case has, to an extent, shown that landlords still “have teeth” if and when the tenant is clearly in breach of contract.

In the case to which Clarke was referring (Jacobs and Another vs Upward Spiral, a property owning close corporation), Upward Spiral applied to cancel the Jacobs lease on the grounds that they had damaged the bathroom in the premises of another occupant (who had the landlord’s permission to live there) and had made no effort to repair it, despite requests to do so.

Jacobs defended the cancellation of the lease on the grounds that, prior to their damaging the bathroom, it had already been dysfunctional and emitted foul odours. They had requested Upward Spiral to remove or renovate it in toto – but they did not pursue the matter.

When the default judgement with costs was given against the tenants by the magistrate’s court, they applied for a rescinding order – this, too, was not granted by the magistrate.

The Jacobs then appealed to the High Court, but they were again unsuccessful - the High Court ruled that the tenants had not treated the damaged bathroom issue with the urgency it deserved, had been tardy in contacting their attorneys and had not taken the lease documentation seriously.

There has recently been a big increase in cases against tenants, says Clarke. “A recent TPN report has shown that only 68% are now paying on time and instances of damage to properties are rising.”

He says this case will encourage landlords because it reinforces the sanctity of contract. “It recognises that tenants have a duty to maintain their premises properly and it gives a clear warning to tenants who sit back and ignore letters from the landlord that this will result in their being deemed in breach of contract – even if they can later offer supposedly valid reasons for their slackness.”

This case was reported in the STBB (Smith Tabata Buchanan Boyes) newsletter which, says Clarke, has given it widespread coverage.