That leaking toilet - whose problem is it anyway?

The landlord has every right to expect the property to be returned to him at the end of the lease period in the same condition as it was when it was handed to the tenant, reasonable wear and tear excluded. "Wear and tear" inevitably occurs as a result of normal wear and aging. It is a form of depreciation which is assumed to occur even when an item is used competently and with care and proper maintenance. It is basically depreciation that would have occurred no matter who occupied the premises. For example, if the property is painted before the tenant moves in and has to be repainted when he moves out 10 years later, no one can expect the paint to be fresh anymore.

The tenant is responsible for any damages to the property, caused by himself or anyone who was on the premises with his permission. Burn marks on a carpet, caused by a negligent domestic, a window broken by one of the children’s friends and hole in a door which is the result of domestic violence, are all examples of such damage. The tenant should have this repaired at his own cost if he does not want the damage deposit to be applied for such repairs.

The tenant is also responsible to maintain the property in the same condition as it was handed to him. This includes watering the garden, mowing the lawn, weeding the garden and pruning rose bushes, as well as taking care of the pool by regular cleaning, backwashing and treating with pool chemicals. Generally tenants are responsible for consumables like replacing light bulbs, dustbin bags and tap washers, as this is seen as "care and proper maintenance". For the same reason, a tenant may be expected to tighten a loose screw of a cupboard door hinge.

As the tenant lives at the premises, it is also reasonable to expect him to report any matters which may cause damage to the property in the long run as soon as he becomes aware of it. Damp issues and  roof leaks  are good examples.

So what repairs are the landlord obliged to do? Common law states that the landlord must maintain the premises fit for the purpose for which it was let. A problem arises when a matter is reported by a tenant, and the landlord does not deem the repair work to be necessary. The landlord is not obliged to fix every item reported. Items, which render the property unfit for the purpose for which they were let, such as no water / electricity, a burst geyser or an oven not working, need to be sorted out as soon as possible. However, there is no obligation on the landlord to attend to items such as missing internal keys, blown light bulbs and squeaky doors.

Sometimes tenants insist on improvements such as additional security doors or new carpets. Unless the landlord undertook to make these improvements in the lease agreement, he may choose to make these improvements or not. The tenant may of course improve the property at his own cost, but may not insist on being refunded by the landlord unless it has explicitly been agreed upon. We advise that such agreements be made in writing. These improvements may only be removed if the property is restored to its original condition.

It is not wise to withhold rent if a matter, which has been reported, is not attended to, as this will negatively affect the tenant’s credit profile.

Does this mean that a tenant is helpless in a situation where the landlord neglects his responsibility to keep the property in a condition fit to live in? No, but the correct procedure must be followed.

In most cases, the tenant will have to give the landlord 14 days written notice to rectify material breach, after which the tenant will be in a position to legally cancel the agreement, or to take legal steps if the material breach is not rectified. Withholding rent is itself a form of material breach, and will allow the landlord to take legal steps.

In an ideal word, a tenant takes care of a property as if it is his own, and a landlord maintains the property as if he is living there himself.


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