'Can I stop paying my rent if they don't fix something?' - and other landlord questions

Credit: iStock
Credit: iStock

So you're living in your own place or sharing with roommates or a partner and it's going pretty well.

You're hopefully mostly enjoying it and the landlord is pretty decent too. 

But what if an issue pops up with your landlord that you need to solve and you're not sure how to go about fixing it? 

Well we got a couple questions from readers and came up with a few of our own and found an expert to answer them - David Beattie, a property expert and author of The Expert Landlord

*Please remember to look at your lease agreement and consult with a legal expert before taking any next steps.*

READ MORE: 10 ways to spend less on rent

Q: With the current water crisis, if your lease says that the landlord covers water and there is a fine imposed on you for water usage can they force you to pay the fine? My agent sent me a mail saying I would be liable so I am curious. Also, I live in a block of flats so we don't have a water meter per flat, just one for the complex, so water use from that meter is divided between the number of flats.

A: I don’t think the landlord can charge the penalty because the cost of the water is being covered by the landlord. The landlord would be able to pass on penalties to the tenant if the tenant uses water excessively but the landlord would need to be able to prove that the tenant has been using excess water recklessly.

In this case, where there are no meters for individual units, the landlord would find it difficult to prove that the excessive water usage is coming from their unit.

Q: So the flat I’m living in at the moment has an electricity debt because of the previous owner. So now whenever we buy electricity the municipality deducts an amount to go towards said debt and we end up with very little electricity for the amount of money we paid. Should the landlord cover this now or is there nothing that can happen?

A: Yes, the landlord should be covering this liability. Our law states that the property owner is liable for all utilities usage at the property. The new tenant cannot be held liable for the debts of the previous tenant.

READ MORE: 5 signs it’s time to break up with your landlord

Q: If you’ve complained to your landlord about something that needs to be fixed repeatedly and it hasn’t been fixed for over a year, am I allowed to withhold rent?

A: This depends on the lease agreement you have signed. If your lease agreement states that you are not allowed to withhold rent for any reason, then the tenant is not allowed to withhold rent. But according to the Rental Housing Act Unfair Practices Regulations the landlord must maintain their property in accordance with health, safety and other regulations, and also must effect repairs according to what the lease says.

I recommend that the tenant gives formal written notice to the landlord of the repairs to be made. If these are not effected in the specified time, then I recommend that the tenant lay a complaint at their Rental Housing Tribunal.

Q: Is my landlord allowed to enter the property without my permission

A: No. As per the Rental Housing Act the landlord may only enter their property after giving reasonable notice (the tenant must give access provided it is at a reasonable time), to inspect their property, make repairs or show a prospective tenant/ buyer/ agent, or a pre-move out inspection.

READ MORE: Here’s how much South Africans are paying in rent

Q: Can my landlord take some of my possessions if I don’t pay my rent?

A: A landlord cannot just take their tenant’s possessions and sell them to recover damages. However, the landlord has what is known as a ‘tacit hypothec’ – a security right – over the movable goods of the tenant where such goods are on the rented premises.

The landlord has a right to attached the tenant’s goods that are on the rented property, to have the sheriff sell those goods at public auction and to apply the proceeds of the sale to the outstanding rental. The tacit hypothec is required to be ‘perfected’, meaning that the landlord will need to institute legal proceedings to obtain an order for attachment of the goods while they remain on the property.

In order to enforce this right the landlord will engage the services of an attorney to issue a rent interdict summons. The court issues this document and then the sheriff goes to the property and writes up a list of movable belongings. Once they are written up, they have been ‘attached’ by the court and may not be removed from the property.

READ MORE: 4 important money questions you should never be afraid to ask

When the court makes an order on the summons, to the effect that the tenant owes the landlord money, the court also makes an order that the goods that the goods that have been attached be sold to pay the landlord the outstanding rental.

At this stage the sheriff comes to take the attached goods into his custody and store them until the public auction is held. It is unlawful for the landlord to simply remove the tenant’s goods without an attachment order having been granted by the court.

Q: My lease expired a few months ago. How much notice must I give before I can move out?

A: An expired lease continues as a ‘periodic lease’ if the tenant continues to occupy the property after the expiry date. A periodic lease then can be cancelled on a calendar month's notice.

READ MORE: How far will my (small) salary go towards rent in different SA cities?

Q: Can my landlord refuse to return my deposit?

A: Your landlord must return you deposit in accordance with the Rental Housing Act and can only withhold it if there are damages on the property agreed to at your joint move out inspection.

The damages must be attended to at a reasonable cost and the cost of these repairs deducted from the deposit. The remainder of the deposit must be returned to you.

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