Rejecting a rental increase
TENANTS challenge rental increases they believe are not justified due to repairs and maintenance issues not attended to by the landlord.
Under common law, the landlord is obliged to deliver the building hired in a fit and proper state for the purpose intended; and is liable to the tenant for any damage caused by a defect in the property leased, “where they have knowledge of such defect, or by reason of his trade or calling he ought to have known of the defect” (Kotze, C.J. in Atkins v Delport, 1903 13 CTR 686).
The landlord is obliged to deliver the property reasonably fit for the purpose for which it was let and also to maintain it in that condition during the lease’s currency – Harlin Properties (Pty) Ltd and another v Los Angeles Hotel (Pty) Ltd, 1962 3 SA 143 (A).
If the tenant knew of the defects and the state of disrepair prior to entering into a contract, and accepted the dwelling with the defects, the tenant cannot, under common law, compel the landlord to carry out repairs.
A landlord walked into a meeting held by his tenants and berated them for not approaching him to discuss the monthly rental increase of R500.
He singled out certain tenants, embarrassing them by disclosing their personal circumstances. He said that he reduced the rentals of tenants who were struggling to meet the increase. He understood the position of pensioners and always demonstrated his good faith by reducing their rentals. This was not in dispute.
The increase was exorbitant, and given the nature of his motivation and the leases, he did not have legal grounds for the increase. The building and individual flats were well maintained, and save for some grievances, tenants enjoyed a cordial relationship. The increase was linked to an increase in levy and municipal rates.
In terms of our law, a notice of rental increase must be unequivocal; in other words, parties must be clear what is required. The notice must refer to the provision in the lease; a specific clause that allows for the increase. A tenant can reject a notice of a rental increase, which is usually presented as an offer, or the tenant can make a counter offer.
A notice cancelling a lease that meets all the legal requirements, once given, cannot be withdrawn. The landlord’s notice was clear and did refer to the lease. However, the increase did not specify an amount or percentage. In our law, the amount or percentage of the rental increase cannot be determined later. It must be certain.
In terms of section 5 (6) (c) of the Rental Housing Act 50 of 1999, the rental increase must be reasonable and such escalation must be included in the lease. The relevant clause of the tenants’ leases read: “In the event of the monthly levy or rates in respect of the premises being increased, the landlord shall advise the tenant in writing of same and the tenant shall be liable to pay such increase, which amount shall be added to the monthly rental.”
The building is not a sectional titles scheme where individual owners pay levies and the lease specifically states the landlord is liable for rates. This means the landlord cannot rely on the above clause to increase the rental.
Dr Sayed Iqbal Mohamed is the chairperson, Organisation of Civic Rights. Tenants in need of advice can contact the office on 031 3046451 or WhatsApp Pretty Gumede on 071 346 5595 or pretty@ocr.org.za, Loshni Moodley on loshni@ocr.org.za or WhatsApp 071 444 5671.