Dear Rental Agent
These past few months have been extremely stressful for rental agents with regard to the water restrictions and their complications.
It is now a fact that a pool cover is an essential if a pool is to be saved from eventual cracking. Only pools with covers can be topped up leaving a landlord little option but to install a pool. Remember that double duty bubble wrap makes excellent pool covers and is not as expensive as a conventional cover.
Most of the queries I receive involve problems concerning the interpretation of fair wear and tear. This rests on the condition of a property initially and during the lease period. In the normal course of events properties need to be repaired from time to time so as not to deteriorate. Once certain items have deteriorated totally it costs far more to replace them than to undertake regular repairs before they break down.
Certain maintenance clauses in a lease agreement are agreed upon to regulate the responsibilities of each party for repairs which may become necessary during the currency of a lease. These clauses will need to be carefully explained to both parties.
Where a clause makes a tenant responsible for the inside of the leased property there is often confusion about fittings that are partly inside and partly outside such as air conditioners, doors and windows. The clauses in this regard should be clear - it is generally better for the landlord to repair these items unless it can be proved that the tenant carelessly damaged them during the tenancy. Photographs showing the state of doors, windows etc at the ingoing inspection are essential to prove their initial good condition.
The clause “fair wear and tear” refers to the deterioration which happens over time, weather conditions and use of a property which cannot be charged to a tenant but is the landlord’s maintenance responsibility. Your maintenance clause should be examined to ensure that a tenant is not made responsible for the repair of all items regardless of their age and condition.
Perceptions of the landlord and tenant are very different. Legally the tenant is responsible for maintenance in terms of the lease agreement if it is considered reasonable, for example if a front door lock no longer works within a month of a tenant moving in, it is doubtful whether this can be charged to the tenant as it is probably fair wear and tear. A landlord will immediately decide this is for the tenant as it was working when the tenant moved in. The lock may however be many years old and need replacing. Select good contractors who are able to report to you if something is damaged by bad use or whether it is age related.
Each case should be taken within its own merits and the entire tenancy evaluated. Remember that once a lease is terminated the tenant no longer is responsible for fair wear and tear as the life cycle of an item cannot be extended beyond the period of that particular lease.
A tenant is not responsible for the maintenance of structural defects, nor does the property have to be handed back in a better state than it was received. The state of the property initially is an important factor because a tenant is not expected to repair something that was in a poor state when first moving in. To quote Roman Dutch Law “If a fence is in such a condition that any ox can knock it over, the tenant is not required to prop it up.”
A famous case which is still referred to today involved a tenant who lived in a property with a thatched roof. In terms of the lease the tenant was responsible for the maintenance of the roof. After a seven year tenancy the landlord charged the tenant for replacing the thatched roof. There was no record of any adequate maintenance having been carried out before the tenant’s occupancy so the tenant had no way of knowing when and how to maintain this roof.
The courts decided that without the necessary knowledge of the state of the roof and total lack of past maintenance undertaken, the tenant could not be made responsible. The tenant had not been informed by the landlord of anything to do with the roof other than the clause in the lease agreement.
If however there had been further discussion and explanation with the past history and name of the contractor responsible for thatching, the landlord would have had a case for either the maintenance or cost of replacement together with a possible loss of rent due to the tenant’s not fulfilling his written maintenance obligations in time for the landlord to relet the property.
In general the courts and tribunals will favour a tenant if a lease is not explicit or a landlord has not made any aspect clearly in simple wording.
- Try and only take properties in good condition
- Get to know everything about the condition of the property
- Adjust your lease clauses with regard to maintenance
- Discuss these with both tenants & landlords - both are ignorant
- Do detailed inspections for record purposes
- Do regular inspections
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