A drought of this severity is classified as an act of God under common law
Landlords and tenants will be indemnified against claims relating to damages suffered as a result of the water crisis.
This is because a drought of this severity is classified as an act of God under common law, so neither party can be held responsible for claims as a direct result.
“Nobody can be held responsible for not fulfilling an obligation if the drought has made that impossible,” says Jacqui Savage, national rentals business development manager for the Rawson Property Group.
For tenants, the lack of water cannot be used as a convenient excuse to cancel a lease without penalties.
“Any lease that falls under the Consumer Protection Act can be cancelled by a tenant with 20 business days’ notice, subject to reasonable penalties,” she says.
However the law relating to acts of God means a tenant may not hold a landlord in breach of the lease due to non-supply of water.
“The landlord can’t be held responsible so early cancellation penalties will still apply.”
Similarly, landlords cannot blame tenants for failing to maintain items that require water.
“Things like gardens and pools are typically the tenant’s responsibility to maintain, and under normal circumstances tenants have to pay for any repairs arising from their neglect. But water restrictions now make watering gardens and backwashing pools impossible, which means landlords cannot hold them responsible for damages that occur as a result.”
However, this does not mean that landlords are powerless to protect their investment or that tenants can ignore their maintenance responsibilities. Tenants must still take reasonable measures to prevent unnecessary damage, including complying with restrictions and collecting grey water.
“When it comes to bigger issues like dealing with stagnant pool water and protecting dry pool pumps there’s a dual responsibility for landlords and tenants to find workable solutions together.”
Drought damage isn’t the only issue tenants and landlords face.
“In many cases, water and utilities are included in monthly rents, and with water tariffs rising so steeply, landlords can’t be expected to just absorb this cost. Depending on the wording of the lease, most agreements make provision for municipal tariff increases to be passed on to the tenant as long as the landlord can provide proof of the higher charges.”
But this cuts both ways. Should Day Zero arrive and the water supply be cut off, Savage says landlords cannot continue to charge for water the tenant no longer receives.
“In this case tenants should negotiate a reduced rental amount. The key is for everyone to be as fair and as understanding as possible.”
The water crisis and Day Zero will also result in “unprecedented circumstances requiring unprecedented responses and actions” from managing agents in sectional title schemes, Andrew Schaefer, managing director of Trafalgar property management, said recently.
The role of managing agents is to research solutions, provide accurate information about water-saving measures and advise their clients how to implement these as fast and cost-efficiently as possible.
In an apartment building, for example, all residents need to be reminded of their responsibilities and informed about water-saving measures and devices they can use, such as low-flow taps and shower-heads.
Managing agents can also make water usage readings available to every owner on their monthly levy statements as this helps them monitor their own consumption.
If there are reserves to do so, Schaefer says body corporates could install water tanks, boreholes, grey water recycling systems or other water-conservation equipment.
Those without the funds can ensure the number of units in the complex is registered with the city council. They can also install separate water meters for each unit and the common property to avoid disputes between residents.