Capetonians breathed a sigh of relief earlier this month when DA leader, Mmusi Maimane, broke the news that Day Zero had been pushed out to 2019. But despite the delay in Day Zero, the woes for Cape Town are not over as strict water controls and rationing are still in place. The looming water crisis remains a threat and has raised a number of questions about how the water crisis affects the rights of tenants and landlords in and around the Western Cape.
While both parties have contractual obligations to fulfil as part of their lease agreement, these obligations can, in fact, become impossible to fulfil when external circumstances interfere. That begs the question, what happens to the lease if it is violated through no fault of either party?
Here’s what you need to know!
Under South African common law, harsh environmental phenomena, such as the drought, are classified as An Act of God. This means that nobody can be held responsible for not fulfilling an obligation if the drought has made it impossible to do so.
For example, barren gardens, dirty or empty pools and stagnant fish ponds are not due to neglect of the tenant and can therefore not be repaired using the tenants deposit. Landlords, on the other hand, can not be held responsible for any water cuts that are made during the drought.
But what does the drought mean for the tenant and landlord?
Tenants Can Still Face Penalties
Any formal lease that falls under CPA (Consumer Protection Act) can be cancelled with 20 business days notice (or four weeks), subject to reasonable penalties. What this means for the tenant is that the lack of water supply can not be used an an excuse to cancel the lease, penalty-free.
Properties Should Still Be Maintained
Despite the non-accountability that arises from an Act of God, tenants are still expected to take responsibility in maintaining the property to the best of their abilities. Landlords and tenants are required to find workable solutions to prevent unnecessary damage to the property.
Services Not Provided Cannot Be Charged For
If Day Zero does arrive – and the supply of water is entirely shut off – landlords cannot continue to charge a tenant for services they no longer receive. In this case, the tenant would be within their rights to negotiate a reduced rental amount for the reduction in utility charges.
Ultimately, the goal is for both tenants and landlords to be as understanding as possible in the face of such a dire water crisis. Working together to avoid the drought is by far the best way to avoid any costly legal intervention.