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“Water is Life.”

As Cape Town continues to brace itself for a possible day zero; a number of questions have been raised with us about how this water crisis affects the rights of tenants and landlords.

Both landlords and tenants have contractual obligations to one another as part of their lease agreements; but what happens in this drought situation if circumstances make it impossible for one or either of them to comply due to circumstances beyond their control.

A drought would fall under the common law definition of “An act of God” and most lease agreements make provision for such an event.

If a tenant or a landlord cannot comply with an obligation placed on them in a lease or any other contract as a result of an Act of God; they are indemnified normally from the consequences of not being able to comply and against any action for damages as a result of their failure to comply. You cannot be held responsible for not fulfilling an obligation where circumstances make it impossible for you to comply.

Thus, for example, a landlord cannot be held liable by a tenant if the landlord, in breach of the lease agreement obligations placed on him/her, cannot continue to supply water to the leased property.

Tenants also cannot use the water restrictions as an excuse to cancel a lease without penalty.

Likewise landlords cannot hold tenants liable, if the tenant despite an obligation to do so in the lease cannot water the landlord’s garden or maintain their swimming pools. Tenants who cannot water gardens or backwash pools because of the strict water restrictions have thus got a valid legal defence if the landlords tries to hold them to the lease or hold them liable for damages as a result of their failing to water the garden or maintain the pool by filling or backwashing it.

This does not mean that landlords are entirely powerless to protect their investment in their properties; or that tenants can completely ignore their maintenance responsibilities and claim “an Act of God”.

Tenants are still expected to take all reasonable steps to prevent unnecessary damage including complying with the lease and with the lawful water restrictions.

This also cuts both ways because if day zero does arrive; and the water supply is entirely cut off; then landlords cannot continue to charge a tenant for services that they no longer receive eg use of a pool or water.

This just goes to show how factual events can impact on the law.

About our author:

Hugh Pollard (Legal Consultant), has a BA LLB and 41 years’ experience in the legal field. 22 years as a practicing attorney and conveyancer; and 19 years as a Legal Consultant.

082-0932304 (Hugh’s Cell Number)

This email address is being protected from spambots. You need JavaScript enabled to view it.

www.legaladviceoffice.co.za

Thank you.

The Legal Advice Office Team.

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