What does your lease say?

Private Property South Africa
Cathy Nolan

In a country like South Africa where crime is rife, most, if not all, people will ensure that the property in which they live has adequate security. While this may be a fairly obvious point, it seems landlords may not be quite as security conscious with their rental properties and may overlook lapses in security.

What are the duties of landlords and can tenants hold landlords responsible if they become a victim of a crime? While this obviously depends of the specific contract, under South African law, the premises must be maintained in a condition reasonably fit for the purpose for which it is let. The question is whether that includes a duty to install and maintain security around the premises to ensure the tenant has full use and enjoyment. In the case of a residential property, if a tenant has seen the premises, knew its condition, and accepted the existing security arrangements, he is entitled to the maintenance of such security, but not to additional measures, such as burglar bars, if that was not previously agreed to.

As always, the details are in the fine print and much will depend on what is said in the lease. Although some tenants have raised the security issue on the Private Property Advice Centre site and want to cancel a lease because they feel unsafe, this depends on what they agreed to in the lease agreement.

The legal term, caveat emptor, means ‘let the buyer beware’ or, in the case of rental properties, let the tenant beware. A tenant often accepts a rental property voetstoets and it is up to him to address all issues, including the level of security, before signing the lease. In other words, he cannot make demands after the lease has been signed, but needs to negotiate the terms and conditions of the agreement before he puts pen to paper.

However, as with property sales, a landlord cannot hide behind the voetstoets clause if he is aware of any existing security issues and deliberately conceals these. For example, if a tenant could prove that he agreed to rent the premises, but was unaware that the property had been targeted by criminals and was consistently broken into before he moved in, he may well have a case against the landlord because he has been induced to enter into the lease agreement under false premises.

If a landlord agrees to make certain improvements or repair existing security measures and fails to do so and the tenant suffers a loss as a consequence, then the tenant may have legal recourse. However, if the lease is mute on the point and the tenant suffers damages, it would be extremely unlikely that the courts would hold the landlord responsible.

This point is backed by the law and in the judgment in Mpange and Others v Sithole 2007 (6) SA 578 (W) where it was held that:

"It is trite that a lessee is entitled to full use and enjoyment of the property during the full term of the lease. The respondent (in this case the landlord) is under a duty to deliver and maintain the property in a condition reasonably fit for the purpose for which it has been let. The duty includes the obligation that lessees shall not be exposed to any unnecessary risk to life or property and that lessees shall occupy the premises with safety."

In that case, the premises were an old warehouse that had been turned into boarded-up rooms, which were completely dilapidated, unsafe and unfit as housing for men, women or children.

The tenant argued that "a lessee is entitled to the full use and enjoyment of the property during the full term of the lease and this included the obligation that lessees shall not be exposed to any unnecessary risk to life or property, and that a lessee shall occupy the premises with safety".

The court held that "when the plaintiffs (the tenants) took occupation of the building, it was already 30 years old and quite dilapidated. Clearly, the plaintiffs took over occupation of the building with their eyes wide open. They cannot now turn around and complain that the building was old and unsafe."

The court went on to state that "the parties competently contracted out of any warranty by the landlord that the premises are in a condition fit for the tenants’ purposes" and "the premises were given to the first plaintiff voetstoots in the same old and dilapidated condition as they were at the time that the lease agreement was concluded. The first plaintiff was well aware of the condition of the building at the time." The court further explained, with reference to Cooper at page 93, that "By analogy it may thus be said that a lessee who accepts premises as they are on the date of occupation accepts them with all their faults as at that date."

The bottom line is tenants need to do their homework regarding security. The best advice in the circumstances of hiring a property is to enquire about the recent history of crime in the area. Before signing a lease agreement, a tenant should make himself fully aware of the existing security facilities on the property. If these are inadequate, address the issue by writing a clause in the lease agreement that sets out the landlord’s duties with regard to security.

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