Cape Town's water crisis and the rights of tenants and landlords

As the Western Cape continues to brace for Day Zero, many questions have been raised about how the water crisis affects the rights of tenants and landlords.

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Both parties have contractual obligations to fulfil as part of their lease agreements, but what happens when these become impossible because of circumstances outside of our control?

According to Cilna Steyn, director of SSLR Attorneys and adviser to the Rawson Property Group, a drought of this severity is classified as an act of God under South African common law. As such, both parties are indemnified against claims made by one another for damages suffered as a direct result of the crisis.

"To put it simply, nobody can be held responsible for not fulfilling an obligation if the drought has made that impossible to do," says Jacqui Savage, national rentals business development manager for the Rawson Property Group.

For tenants, that means the lack of water supply can't be used as a convenient excuse to cancel a lease, penalty-free. "Any lease that falls under the CPA can be cancelled by the tenant with 20 business days' notice, subject to reasonable penalties," says Savage.

As stated above, a tenant may not hold a landlord in breach of the lease agreement due to non-supply of water. It's an act of God - the landlord can't be held responsible - so early cancellation penalties will still apply.

Likewise, landlords can't blame tenants for failing to maintain items that require access to water. "Things like gardens and pools are typically the tenant's responsibility to maintain," says Savage, "and under normal circumstances, tenants have to foot the bill for any repairs arising from their neglect. Of course, water restrictions now make watering gardens and backwashing pools impossible, which means landlords can't hold tenants responsible for damages that occur as a result."

That doesn't mean landlords are powerless to protect their investments, however, or that tenants can completely ignore their maintenance responsibilities and claim "an Act of God".

"Tenants are still expected to take reasonable measures to prevent unnecessary damage, including complying with restrictions."

This knife cuts both ways, though: should Day Zero arrive and the water supply gets entirely cut off, Savage says landlords can't continue to charge tenants for services they no longer receive.

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