Following the devastating floods in KwaZulu-Natal where countless forms of infrastructure in our province, such as homes, office parks and roads have been washed away or damaged, the province is still reeling from the after effects of damage and loss of water and/or electricity in certain areas.
Those who have not had to endure the loss of their home are now left to deal with the damage caused to their property by the flood, or as a consequence of the flood.
The question is, in the case of an ‘act of God’, who is liable to pay the costs of repairs to the leased property?
An ‘act of God’, or in legal terms ‘force majeure’, is an unforeseeable event beyond the control of a party, and renders the performance of said party’s obligations under an agreement or contract wholly or partially impossible.
An ‘act of God’ is therefore an event that neither party has control over, which event effects the fulfillment of an agreement.
Our common law dictates that any damage sustained to the structure of a rental property, including damage to permanent fixtures such as a geyser, cupboards, toilets and the like, is the responsibility of the landlord.
However, in the event that such damage was caused due to the negligence; alternatively, the contributory negligence of the tenant, the tenant may be held wholly or partially responsible for the costs of the repair.
The question is (in part) who caused the damage and who has the insurable interest (who has the right to insure) the damaged property.
As an example, in the event of an ‘act of God’ where the heavy rainfall causes a carport over a tenant’s vehicle to collapse onto the tenant’s vehicle and thus causing damage to the vehicle, the landlord will be responsible for only the costs of repair to the carport and the tenant will have to claim for the damages to his vehicle from his vehicle insurer, provided that his insurance does cover ‘acts of God’.
What has been said above sounds simple enough, but depending on the facts of any particular matter, the issue may become rather complex. In such circumstances, we recommend that the tenant or the landlord (depending on the facts) obtain legal advice as soon as is reasonably possible after the damage has occurred.
Further to the heavy rainfall and subsequent flooding, many homes have been left without water and/or electricity for long periods of time.
A tenant does not have a claim against the landlord for the loss of water and/or electricity due to impossibility of performance by the landlord (as a consequence of the Municipality being obstructed from providing these services, for example, due to a burst water pipe or blown transformer).
As a result, where the landlord cannot fulfill its obligation to supply water and/or electricity because the municipality has failed to comply with its obligations, rendering the landlord’s performance impossible, the landlord will be indemnified against any claim made by the tenant for the damages suffered.
This is known as a ‘supervening impossibility’.
It is for this reason that it is important for lease agreements to include clauses that regulate the consequences in the event of any ‘act of God’.
In conclusion, it is evident that where an ‘act of God’ has taken place the landlord is, in the normal course, responsible for the costs of repairs to the structure and permanent fixtures of the property.
In the event that there was negligence by the landlord, in that he did not repair or maintain the structure or permanent fixtures on the property, the tenant may have a claim against the landlord.
Conversely, should the tenant have neglected his duty of care of the property; alternatively, acted in a manner that caused considerable damage to the property, over and above the damage caused by an ‘act of God’, the landlord will have a claim against the tenant.
The bottom line is that the parties must ensure that their respective rights and obligations are clearly determined in a written lease agreement.
This article is for general information purposes and should not be used or relied on as legal or other professional advice. We do not accept liability for any errors or omissions nor for any loss or damage arising from reliance upon any information contained in this article. Please contact our offices on 031 202 3100 / ca****@ca************.za for specific and detailed advice on this topic and/or in respect of specific facts and circumstances.
Written by Nikki Govender
