Who’s responsible for installing rainwater tanks - tenant or landlord?
Drought is affecting many parts of the country, not just Cape Town: Johannesburg had a critical shortage of water a few years ago, Durban in 2016, parts of Limpopo have struggled with poor supply for years, and the Northern Cape and Eastern Cape have areas facing water crises too.
If the State is unable to supply water, the landlord cannot be held responsible. However, if the lease stipulates that the landlord will ensure a continuous supply of water, he or she will have to look at installing rainwater tanks for their tenants.Many homeowners are installing rainwater tanks and grey water systems to help them meet water restrictions and to protect themselves against a Day Zero scenario. But what about tenants?
Who is responsible for supplying rainwater tanks and having them connected to the guttering? Is it the landlord’s duty or is that for the tenant's account?
While landlords are required to ensure that their tenant enjoys an uninterrupted water supply in terms of section 8(2) of the Western Cape Unfair Practice Regulations, it is the State’s responsibility to ensure a continuous supply of water. If the State is unable to supply water, the landlord cannot be held responsible. However, if the lease stipulates that the landlord will ensure a continuous supply of water, he or she will have to look at installing rainwater tanks for their tenants.
“Most leases were drawn up prior to the current level of the drought,” says Johan van Bosch, principal estate agent at Just Property Claremont. “However since residential leases are normally valid for 12 months, we expect to see parties inserting clauses in the leases going forward to deal with this issue.”
If the tenant pays for a water tank (incurring a not-insignificant cost while adding what could in future certainly be construed as an "improvement"), can they take it with them when they go if they return the property to its original condition?
Johan explains that a fixture is deemed a fixture by nature of its installation: “A rainwater tank is normally placed on a flat surface and the weight of the water acts as an anchor. In theory the tenant should be able to remove the tank once empty but this will require the tenant to remedy the area where the tank was placed and all subsequent piping. However if the piping from the tank is integrated with the existing system to the house the whole rainwater tank and piping will be deemed a fixture.”
Johan advises tenants to obtain permission from their landlord before any installation of this kind is made. “The two parties can then also agree as to what will be required at expiry of the lease.” All agreements should ideally be in writing and possibly made an addendum to the lease.
That said, no lease can supersede a law or bylaw. When restrictions preclude water usage – e.g. the backwashing/filling of a pool or the watering of a garden – a landlord cannot use a dry garden or half-filled pool as a reason to hold back the tenant’s deposit. Obviously, in all other areas tenants and landlords must still look after the property in accordance with their lease agreement.
What is the position with regards to leased flats or other spaces controlled by body corporates?
In information regarding Level 6 water restrictions, the City of Cape Town says that “body corporates and homeowners’ associations must encourage water saving and, where necessary, take action against unit holders who waste water. Where possible, submetering should be installed in order to monitor the usage of all individual units.”
Caleb Jones from Norton Rose Fullbright advises that both tenants and landlords should familiarise themselves with their lease. “The obligation to supply water rests with the municipality, which has a constitutional and statutory obligation to supply water to consumers. A landlord, however, has an obligation not to interrupt the supply of water being received by his or her tenant.” So even if a tenant is using more than the stipulated 50 litres a month, a landlord or body corporate may not cut off the tenant’s water supply.
“Agents and landlords need to remind their tenants to adhere to the notices and anything put in place by body corporates regarding the enforcement of restrictions,” says Doreen Mynhardt, of Just Property Helderberg.
“Lease agreements should be explicitly linked to compliance with ‘House Rules’ and these can be subject to amendments from time to time. Proactive landlords and agents who manage properties should be communicating regularly and across multiple channels with tenants about these issues.”
Mynhardt adds that leases should “in broad terms have a clause which states that the tenant must use the property in a lawful manner and comply with all the by-laws”, which would include any water restrictions, such as keeping water usage to or below 50 litres a day.
“It is clear that water will continue to be a scarce resource for years to come,” says Paul Stevens, CEO of Just Property. “Keep this in mind when drawing up new leases. Consider reaching an agreement on who is responsible for what when it comes to drought; make sure there is complete understanding regarding what constitutes a fixture that remains when the tenant leaves, and what the tenant may take with them.”
Stevens recommends adding addendums to a lease that clearly “spell out each party’s responsibility”.