2. Continue with the lease Should the tenant wish to continue with the contract, he may demand that the landlord perform in terms of his obligation to maintain the property, failing which, he may:
The main point of contention - withholding payment It is the last point that seems to be the most misunderstood and contentious. It is important to note that the tenant cannot simply decide that he feels he is entitled to withhold a portion of the rental amount and unilaterally decide what amount to deduct. The court has to grant an order to that effect first. The reason for this is twofold. Firstly, he has a binding contractual obligation to pay the agreed rental and his failure to do so would mean that he is in breach of the lease agreement. And secondly, the courts do not simply allow individuals to unilaterally decide that they are suffering damages, as a result of a breach, for which the landlord must be liable, and unilaterally decide what amount to attribute to these damages. How are damages defined? The above sort of damage suffered is generally known as “unliquidated” as it is not easily ascertainable, and is often subject to a number of subjective factors; whereas the damages that may be incurred by the tenant who wishes to simply effect the repairs himself by hiring a contractor may be considered to be “liquid” as they are capable of being ascertained relatively easily. A good example of an unliquidated damages claim would be that where a room in a house let by the tenant is not maintained by the landlord and falls into a state of disrepair to the point in which the tenant can no longer make use of this room. If this were to happen to you as a tenant, what amount would you say would be fair to deduct from the rental as compensation for your loss of the room? It is likely that the answer to that may vary as many times as it is posed, and if a tenant could unilaterally make that decision without an order from the courts, the tenant and landlord relationships would indeed be treacherous. That said, Marlon says it is also important to bear in mind that Legislature passed the Consumer Protection Act No. 68 of 2008 (CPA), which has to some extent amended certain aspects of the common law and has in some circumstances crystallised other aspects. These changes affect both the tenant and landlord and they should in turn be aware of its provisions. Notes on the relevant sections of the CPA
How do you decide if a rental contract is fair? The Regulation makes clear that any provision in a contract will be presumed to be unfair when it excludes or restricts the legal rights or remedies of the consumer against the supplier in the event of total or partial breach by the supplier of any of the obligations provided for in the agreement. The Regulation lists an example of such an unfair provision, namely, a provision that limits or restricts the consumer’s right to set off a debt owed to the supplier against any liquid claim which the consumer may have against the supplier. At first glance, it would seem that any provision in a lease agreement that purports to restrict the right of the consumer to set off any amount from the rental would be deemed to be an unfair clause. The wording … ‘any claim which the consumer may have against the supplier’ must however be read in the context of the preceding paragraph, which makes clear that the consumer may only apply such a set off where he has a legal right or remedy to do so. What the CPA says about holding back rent The CPA does not provide any legal right to set off any amounts from the rental where the landlord fails to maintain the property. At most, the CPA allows a tenant to require the landlord to remedy any defect in the property or to refund a reasonable portion of the price paid. In other words, to discount the rent. The reference to the refunding of money, as opposed to unilateral set-off, is important as it is in line with the common law that one cannot simply set-off an illiquid debt. The position is of course different where the tenant seeks to place the property in the state it should be in and in doing so incurs reasonable, necessary and easily ascertainable damages, which may in turn be set off against the rental. As stated above, this will need to be preceded by a demand on the landlord calling upon him to place the property in the state agreed upon and after which he fails or refuses to do so. This amount may be set off because it is a liquid claim that the tenant will have against the landlord and which is capable of being set off against the rental. Insofar as a clause in a lease may seek to limit or restrict the tenant from setting off any liquid amount from the rental that he would legally ordinarily be entitled to, but for the contract in question, such a clause will, in terms of the Regulation, be presumed to be unfair in terms of section 48 of the CPA. Conclusion The effect of the presumption is quite simply that where there is any dispute about the clause, the onus will be on the landlord to show why it is not unjust, having regard to the circumstances of the matter. Even where a lease agreement does not expressly prohibit the withholding of any portion of the rental, the tenant cannot unilaterally deduct an amount from his rental, which he thinks is fair, without first having taken steps through the courts to liquidate his “damages” claim or set off. Courtesy of PrivateProperty | Lea Jacobs
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