Noise created by construction to be undertaken by a neighbour will cause disruption and a reader wants to know if he can prematurely terminate his lease or receive a reduction in rental.
His problem is that his wife remains at home during the day and suffers from a condition that requires her to rest frequently.
He is worried that the continued noise will prevent her from getting adequate rest and will ultimately have a negative impact on her health.
See the reader’s question here.
The reader has advised the landlord of the intended building works but says the latter has made no representations to him or the body corporate.
He adds that the landlord is fully aware of his wife’s condition and that they chose the location due to it being quiet.
In asking for a reduction, he thought he could use the money to make alternative arrangements for his wife during the course of the day.
There is a ruling which pertains to this matter.
In the case of Thompson v Scholtz, the Supreme Court of Appeal said where a lessee is disturbed in the use of leased property he can in appropriate circumstances be relieved of the obligation to pay rental in whole or in part.
Applying that principle, it is clear that the reader could well be entitled to a partial or full reduction.
This would depend on the extent of the reduction of the enjoyment of the rented property and be dependent on the circumstances of the matter.
The Thompson v Scholtz scenario was quoted in the Supreme Court of Appeal ruling in the case of Herr v Innomet (Pty) Ltd, where a tenant in a sectional title scheme terminated his lease in anticipation of such building works.
He was similarly concerned that the building works would render his leased unit uninhabitable, particularly due to him and his wife having a baby.
The general principle applicable is that a landlord is obliged to provide peaceful and undisturbed occupation of the leased premises.
To determine the full extent of the possible disturbance that may result from the intended building works, a factual enquiry would have to take place.
This would involve questions such as how long the project will take, how much of the work will involve noisy demolition or construction and whether heavy trucks will be in and out of the area.
If the reader advised the landlord of his intention to prematurely terminate the lease, it could cause the landlord to react.
This could allow for a constructive negotiation as to what steps the parties could take if the building works proceed as planned.
The reader should also examine his lease agreement to determine whether or not any escape clause exists.
Perhaps that allows for early termination of the lease on notice to the landlord in particular circumstances.
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