Land­lord-ten­ant li­a­bil­ity is­sue might be solv­able

The Star Late Edition - - METRO WATCH - BEN­JAMIN DIN ben­jamin.din@inl.co.za

A SO­LU­TION to the “im­pos­si­ble tri­an­gle” – a moniker for land­lord-ten­ant li­a­bil­i­ties over in­cor­rect mu­nic­i­pal charges – might be pos­si­ble af­ter all, ac­cord­ing to two lo­cal at­tor­neys spe­cial­is­ing in mu­nic­i­pal mat­ters.

The at­tor­neys ex­am­ine the op­tions, as a prop­erty owner or man­ager, in deal­ing with the sit­u­a­tion where the City of Joburg is send­ing in­cor­rect or es­ti­mated bills and which the ten­ant is dis­put­ing.

At­tor­ney Chantelle Glad­win and Jan-Harm Swanepoel, a can­di­date at­tor­ney, co-au­thored an ar­ti­cle which draws heav­ily from the law of delict, where one can seek com­pen­sa­tion for harm done to them.

“When the city in­cor­rectly bills a charge, the bill usu­ally goes to the land­lord if the ten­ant does not have a mu­nic­i­pal ac­count. The land­lord sub­se­quently passes it along to the ten­ant, but the ques­tion of what hap­pens next re­mains. Ide­ally, land­lords should as­sist ten­ants in rais­ing and pur­su­ing a dis­pute with the mu­nic­i­pal­ity over the im­proper charge, and ten­ants should fol­low through with the dis­pute,” said Glad­win.

Land­lords have the au­thor­ity to give ten­ants the power of at­tor­ney, which al­lows ten­ants to dis­pute the mat­ter with the mu­nic­i­pal­ity di­rectly.

“Re­mem­ber that we are deal­ing with an ‘im­pos­si­ble tri- an­gle’ here, where the ac­count is in the land­lord’s name, but it is the ten­ant who is con­sum­ing the ser­vices, and would have all of the knowl­edge per­tain­ing to the dis­pute,” she said.

For­tu­nately, for both land­lords and ten­ants, there is some respite: it is il­le­gal for the mu­nic­i­pal­ity to dis­con­nect the sup­ply to a prop­erty dur­ing an on­go­ing dis­pute.

How­ever, land­lord-ten­ant co-op­er­a­tion isn’t al­ways the case, es­pe­cially when leases do not ex­plic­itly out­line a way to ad­dress the im­proper charges.

One sce­nario is the land­lord de­mand­ing strict com­pli­ance with the lease, which usu­ally calls on the ten­ant to sat­isfy o u t s t a n d i n g m u n i c i p a l ac­counts but fails to pro­vide a way for the ten­ant to chal­lenge the

One po­ten­tial so­lu­tion is to amend the lease

charge.

Strict com­pli­ance seems un­law­ful un­less both par­ties dis­cussed the spe­cific is­sue of mu­nic­i­pal er­rors prior to en­ter­ing into the lease, said the at­tor­ney.

A po­ten­tial so­lu­tion is to amend the lease to in­clude an agreed-upon process on how to re­solve the sit­u­a­tion.

For ten­ants deal­ing with land­lords who refuse to hand over power of at­tor­ney, Glad­win rec­om­mends a va­ri­ety of so­lu­tions. Le­gal ac­tion is a po­ten­tial re­course as well, through the courts or the Rental Hous­ing Tri­bunal.

For land­lords in the op­po­site sit­u­a­tion, de­duct­ing from a ten­ant’s de­posit is a pos­si­bil­ity.

@ben­ja­mindin

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