A reader who took occupation of rented premises on the fifth day of a particular month says she was only prepared to pay rental pro rata and wants to know if this is fair practice.
She says she advised the landlord of the situation. As a result of her demand, the landlord has labelled her as troublesome.
The reason for delay in occupation by the reader will influence her rights or the chance of finding a remedy.
See the reader’s question here.
There is no indication as to the reason why the reader took occupation five days into the month concerned.
Presumably the rental term is to operate in the usual manner – on a month to month basis or for an extended period of a number of months.
It is quite possible that the reader was entitled to take occupation of the premises on the first day of the month.
Perhaps she chose not to or was unable to for reasons that do not amount to fault on the part of the landlord.
If the reader was able to take beneficial occupation of the rented premises, her failure to do so should not entitle her to any abatement of the monthly rental.
If we were to exaggerate this scenario for the purposes of illustration, the situation could arise where if the reader failed to take occupation for an entire month, it would not be fair on the landlord to have to forego the rental for that month.
In the event of the premises not being available for occupation on the first day of the month concerned, the position may well be different.
Assuming that the reader was entitled to take occupation of the premises on the first day of the month but was unable to do so, she is not at fault.
Perhaps the previous tenant failed to vacate the premises timeously or the landlord failed to make the premises available timeously.
In the Supreme Court of Appeal matter of Thompson v Scholtz (1998) the court said to award the landlord the full rental when he failed to give his tenant full occupation is to go against the first proposition in the BK Tooling case.
The ruling added that to deny the tenant a reduction of rental pro rata to her diminished enjoyment of the property is to go against the authority to sanction a reduction in rental when the landlord is at fault.
The court says the rental can be reduced pro rata where the interference with the lessee’s enjoyment of the leased property is the result of vis major or casus fortuitus (acts of God) as well as due to the lessor’s breach of contract.
It is thus clear that the law recognises an abatement of rental in instances where enjoyment of the premises by the tenant has been reduced.
However, the circumstances under which such enjoyment is reduced should be examined to determine the cause of such limitation.
Depending on these, the reader may well be within her rights to claim a reduction.
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