The current drought and resulting water restrictions in Cape Town is causing quite the challenge for landlords and tenants alike. Section 9 of the Western Cape Practice Regulations clearly states that neither landlord nor tenant may conduct any activity that is either prohibited by the lease agreement or by law. Furthermore, the current drought is considered an Act of God, and as such both parties are indemnified against claims made by the other for any damages suffered as a result of the drought.
In practical terms, this means that both the landlord and tenant may be exempt from complying with certain terms of the lease agreement, should complying with those terms lead to contravening the current water restrictions. Most standard lease agreements require the tenant to maintain the swimming pool and garden. However, under the current water restrictions, doing so would be in contravention of the law. Such a term is thus not enforceable, and a landlord will not have any recourse against a tenant for failing to maintain the swimming pool and garden. Likewise, tenants cannot use the lack of or reduced water supply as an excuse to cancel their lease agreement or claim reduced rental.
The current water restrictions also have considerable financial implications. Water prices are increasing, and the City of Cape Town is issuing severe fines for any water misuse. This raises the question of who is responsible for these increased prices and potential fines. The answer depends on the wording of the lease agreement. Most lease agreements make provision for the tenant to pay for their water usage as billed for by the Municipality. If this is the case, the tenant will obviously be responsible for the increased water prices. If the rental is however a fixed amount, including water, the landlord will have to absorb the cost of the increased water prices.
The landlord is ultimately responsible to ensure that all Municipal bills and fines are paid up to date. Section 8(2) of Western Cape Practice Regulations states that a landlord may not interrupt the supply of a tenant’s water and failing to pay any Municipal bills or fines could result in such interruptions. The landlord is thus obliged to pay any fines; however, they may claim that money back from the tenant or deduct it from their deposit.
A further question is whether a landlord is obliged to install a grey water system or water tanks on the leased premises. As mentioned above, section 8(2) of the Western Cape Practice Regulations only requires a landlord not to interrupt the supply of water. The right to water is a constitutional right, and accordingly the onus rests on the State to provide it. Unless the lease therefore expressly states that the landlord will ensure constant supply of water, the landlord is under no obligation to install any further water systems, to ensure constant supply of water.
The tenant could of course install a rainwater tank themselves, but there are a few complications with this. Firstly, it is a very costly exercise for a tenant to go through. Secondly, a rainwater tank would most likely be considered a fixture, due to the nature of its installation. Such a tank needs to be placed on a flat surface, which is usually built specifically for it, and once full, the water acts as an anchor. Furthermore, if there is piping that is integrated with the existing system, the tank will definitely be deemed a fixture. Consequently, the tenant needs to ask the landlord’s permission in order to install a water tank. Additionally, the tenant will not be able to remove the tank once the lease expires, and the landlord will benefit from the improvement. There is of course nothing that prevents the landlord and tenant from coming to a fair agreement, apportioning the cost between both parties.
Tenants and landlords alike need to consider all of the above when entering into new lease agreements and make provision therefore. Similarly, should the landlord and tenant agree to any changes to their current lease agreement, to make provision for the water crisis, it is in both parties’ best interest to put any such agreement in writing. The water crisis is a reality that we all need to accept, and both tenants and landlords need to ensure that their rights are fully protected under future lease agreements.