Rental Property Legal Update

Can A Tenant Cancel Lease When Construction Renovations Of Adjacent Apartment Hampers Use & Enjoyment Of Own Unit?

With large scale renovation looming for a Clifton sectional title unit, would the tenant in the unit just above have grounds to terminate the lease because his use and enjoyment of the unit for the remainder of the lease period was disrupted? This is the scenario that was presented to the Supreme Court of Appeal for adjudication in this matter. The judgment is an interesting read and illustrates the duties of a landlord in such cases.

Pursuant to the latter notification, Innomet instructed its agent to conduct an inspection of the premises and to collect the keys to the premises. This was done and thereafter Innomet entered into a lease agreement with a new tenant at a reduced rental of R25,000 per month. Although the inspection showed that the premises were left in an excellent condition, Innomet refused to return Herr’s deposit.

Herr thus instituted a claim for the return of the deposit of R64,000, to which Innomet responded with a counterclaim for damages, alleging that Herr breached the agreement’s early termination clause and that Innomet suffered damages as a result, in lost and lower rental. The magistrate’s court found in favour of Herr, but the judgment was overturned on appeal to the High Court.

This matter deals with Herr’s appeal to the High Court judgment. HELD: (At the commencement of the trial, it was conceded by Innomet that it was obliged to return the deposit, so no more was said about this in the judgment.)

• A landlord has the duty to provide undisturbed use and enjoyment of the leased premises to the tenant.

• Where the tenant is deprived of or disturbed in the use or enjoyment of leased property to which he is entitled in terms of the lease, either in whole or in part, he can in appropriate circumstances be relieved of the obligation to pay rental, either in whole or in part; a court may abate the rental due by him pro rata to his own reduced enjoyment of the leased premises.

This is true not only where the interference with the tenant’s enjoyment of the leased property is the result of vis major (calamity outside your control) or casus fortuitous (accidents occurring by pure chance/misfortune), but also where it is due to the landlord’s breach of contract, e.g. because the leased property is not fit for the purpose for which it was leased or because the performance rendered by the landlord is incomplete or partial. This is due to the reciprocal nature of a landlord’s and tenant’s obligations to each other.

• Applying these principles to the facts, it was clear that Innomet could not succeed in its claim for contractual damages. As landlord, Innomet was obliged in terms of the lease to provide the Herrs with peaceful and undisturbed occupation of the premises. The noise and inconvenience that would result from the intensive construction work would undisputedly render the premises uninhabitable.

• Innomet did not respond to the e-mails sent by Herr, both which explained in detail 3 // 3 the effect of the planned construction which would have deprived the Herrs of the use and enjoyment of the premises.

• Innomet had an obligation towards Herr and should have objected to the planned construction by the other unit owner by raising it with the trustees of the body corporate of the sectional title scheme. The conduct rules of the scheme states that ‘an owner shall not make alterations to his section which are likely to impair the stability of the building or the amenity of other sections or the common property’. Herr, as tenant, could not himself invoke this rule; it was for Innomet to do so. It however failed to do so, even after the planned construction had been brought to its attention by the Herrs. Innomet’s counterclaim therefore had to fail.

Source:  STBB