A reader whose rented four-bedroom home burned down some time ago has approached the Property Poser panel for assistance regarding his rights after the fire.
The tenant writes that he and his family were subsequently moved to a two-bedroom house on the undertaking that the landlord would have them back in a similar sized dwelling within three months.
It seems that the landlord’s intention was to build onto the house that the reader currently occupies. The problem is that 14 months have elapsed since the move with no additions or improvements to the size of the house.
During this time, the reader has paid the same rental as he did for the larger dwelling. On top of this, all his family’s movable possessions were destroyed in the fire, which was apparently caused by a short circuit in the wiring.
He would like to know what his rights are in terms of a reduction in his rental and claiming for his lost possessions.
The difficulty in assessing the situation from a legal standpoint lies in the fact that the details of the agreement between tenant and landlord have not been disclosed, says Schalk van der Merwe from Rawson Properties Helderberg in Cape Town.
“The only condition that seems to have been agreed upon, that we are aware of, was increasing the size of the dwelling within the agreed time.”
Van der Merwe says this obviously has not taken place and the rental remained the same.
“It’s not clear whether the new dwelling justified a higher rental but what does seem apparent is that there could be grounds for an abatement of some amount considering the fact that the house is smaller than it should be.”
Van der Merwe says the lease agreement between a landlord and tenant typically addresses the rights and obligations of the parties in the event of the partial or total destruction of a rented property.
“Where the property is partially destroyed and the tenant is able to continue occupancy during repairs, an abatement of rental will usually be applied for the interim period.”
Where the property is totally destroyed, and because it is the very thing that forms the subject matter of the lease, the contract usually comes to an end, says Van der Merwe.
Where the destruction was caused by one of the parties to the lease, the other may still have an action against that party, says Sean Radue of Radue Attorneys in Port Elizabeth.
“This may well be the case as a result of the faulty wiring but this would be largely dependent on the specific circumstances giving rise to and surrounding the fire.”
Radue says it is also quite usual for the onus of insurance of the movables kept within a rented property to be on the tenant.
“However, we have no clarity as to what might have transpired in terms of dealings with the insurers or otherwise.”
The occupation of the new dwelling by the reader could be interpreted to constitute a new lease of that dwelling in its own right, says Radue.
“It isn’t disclosed whether there was a written undertaking regarding an increase in the size of the dwelling or whether the parties’ intention was for the rental to decrease if this wasn’t carried out.”
Radue says it may well have been the intention of the landlord to increase the rental when the new additions were completed.
“The reader should consult the remedies made available under the Rental Housing Act. Although we don’t have detailed information, one or more aspects of this matter may constitute an unfair practice.”
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