IS THE TENANT OR LANDLORD RESPONSIBLE FOR THE WATER LEAKS?

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1 MONTHLY NEWSLETTER ISSUE 08 IS THE TENANT OR LANDLORD RESPONSIBLE FOR THE WATER LEAKS? Questions, and sometimes disputes, often arise between landlords and tenants regarding where the responsibility lies with the maintenance of a property. The simple answer is that tenants can generally only be held responsible for repairs/replacement on the property if the damage was caused by the tenant s actions, or items that have a short life span, such as light bulbs. On the other hand, alarm systems, auto gates and doors, locks, fixtures and fittings, appliances, or anything provided to the tenant are generally the responsibility of the owner to repair, unless damaged by the tenant. Fair wear and tear Damage due to fair wear and tear is the owner s responsibility to correct. This includes situations where the property has, over time, experienced wear due to its use or age. Examples would include: 1. Fireplace chimneys: The landlord should maintain the fireplace e.g. having the chimney cleaned at appropriate intervals. Gardens, however, would require the tenant to do general maintenance. 2. Blocked drains: This is usually due to tenant usage making it the tenant s responsibility, but if blockage is due to tree roots, it would be the landlord s responsibility. Regarding appliances, as with any fixture or fitting, the landlord is responsible for repairs to appliances provided under the tenancy agreement unless the damage was caused by the tenant s deliberate actions or negligence. Tenants should report any damage on the property. If they fail to do this, they could find themselves held liable for any further damage due to lack of immediate attention to the initial problem. Furthermore, tenants are obliged to provide access for contractors to effect repairs. Conclusion If there is a water leak on the property, it would most likely be the landlord s responsibility to fix. It is advisable for tenants to read and understand the lease agreement fully and for landlords to list as much as possible that needs to be maintained by the tenant. For example, if the unit has a garden that the tenant is responsible for maintaining, this should be mentioned in the lease.... t/

2 SECTIONAL TITLES: WHAT IS THE ROLE OF THE BODY CORPORATE? When it comes to sectional title schemes, there is still widespread misunderstanding of even the basics, starting with the body corporate and how it is established, as well as what its functions and powers are. This misunderstanding often gives rise to many problems and disputes in sectional title schemes which could quite easily have been avoided. What is a sectional title? A Sectional Title Development Scheme, usually referred to as a "scheme", provides for separate ownership of a property, by individuals. These schemes fall under the control of the Sectional Titles Act, which came into effect on 1 June When you buy a property that s part of a scheme, you own the inside of the property i.e. the space contained by the inner walls, ceilings & floors of the unit. You are entitled to paint or decorate or undertake alterations as desired, providing such alterations do not infringe on municipal by-laws. What is the body corporate? The Body Corporate is the collective name given to all the owners of units in a scheme. Units usually refers to the townhouses or flats in a development. The body corporate comes into existence as soon as the developer of the scheme transfers a unit to a new owner. This means that all registered owners of units in a scheme are members of the Body Corporate. 1. The Body Corporate controls and runs the Scheme. 2. Day-to-day administration of the Scheme is vested in trustees who are appointed by the Body Corporate. 3. Major decisions regarding the Scheme are made by the Body Corporate, usually at the annual general meeting (AGM), or at a special general meeting (SGM). At these meetings, matters, which affect the Scheme, are discussed, budgets are approved, rules can be changed and trustees are appointed. Each member of a Body Corporate is entitled to vote at these meetings, providing that the member is not in arrears with levy payments or in serious breach of the rules. The Body Corporate exists to manage and administer the land and buildings in the scheme. This means, that the Body Corporate is required to enforce the legislation and rules in the Sectional Titles Act, the Management Rules and the Conduct Rules of the scheme. Amongst their other duties, the Trustees manage the Body Corporate s funds, enforce the rules and resolve conflict to the best of their ability

3 TAX OMBUD: RECOURSE FOR AGGRIEVED TAXPAYERS The Tax Administration Act that came into effect on 1 October 2012 is a valiant attempt to balance the rights of the tax man with those of the taxpayer. One of the ways of bolstering the taxpayer s position on this not very level playing field is the creation of the office of the ombudsman or tax ombud. Exactly one year after the inception of the Act, Gauteng Judge President Ngoepe was appointed as the first encumbent of this office. What is the role of the ombud? The mandate of the ombud is set out in section 16(1) of the Act:...to review and address any complaint by a taxpayer regarding a service matter or a procedural or administrative matter arising from the application of a tax Act. The aim is to provide taxpayers with a low-cost mechanism to address administrative difficulties that cannot be resolved by SARS. However, the ombud s powers are limited. They may not review legislation or policy unless it relates to a service, procedural or administrative matter. Although the Act is not clear on the issue, the decision as to whether a matter falls within the scope of his mandate probably lies with the ombud themselves. If you have a complaint A complainant is required to first exhaust the available complaints resolution mechanisms within SARS before approaching the office of the ombud, unless there are compelling circumstances for not doing so. This will for instance be the case where exhausting internal mechanisms will cause undue hardship to the taxpayer, or is not likely to produce a result within a reasonable period of time. Complaints are to be made in writing on the prescribed form to the office of the ombud. A copy of the complaint form can be requested from the tax ombud s office by telephone, fax or . The form must be completed and signed by the taxpayer. If a tax practitioner or other person completes and signs the form on behalf of the taxpayer it is advisable for the client to complete a power of attorney specifically for this purpose. All supporting documents must be attached to the form. A request for review of the complaint should include any correspondence received or sent relating to the complaint, call reference numbers, and the relevant contact details of the SARS officials with whom the taxpayer dealt. It is recommended that the complainant specifically indicates which internal actions were pursued and what SARS response was. If a taxpayer is unsure as to whether or not his complaint falls within the ombud s mandate, or if a taxpayer is unable to write his/her complaint, they may call the ombud s office where trained professional staff will attend to the call and advise what should be done. What can the ombud do? The ombud may review and address a complaint in a number of ways, including by way of mediation or conciliation. He/she may also facilitate a taxpayer s access to complaint resolution mechanisms within SARS. Ultimately they must follow informal, fair and cost-effective procedures in resolving a complaint. The ombud s recommendations regarding the resolution of a matter are not binding on SARS. In the interests of legitimacy and transparency it is however likely that SARS will follow the recommendations. Reports by the ombud to the Minister of Finance must be submitted on an annual basis. In addition, they must also report to the Commissioner of SARS at quarterly intervals. This report must contain recommendations for any administrative action that may be appropriate to resolve the problems encountered by taxpayers. 3

4 THE AMENDED PROPERTY SECTOR CODES, ARE YOU AFFECTED? During early July the Minister of Trade and Industry, Mr Rob Davies formally announced the coming into operation of the new Amended Property Codes in terms of Section 9 (1) of the Broad Based Black Economic Empowerment Act 53 of 2003 as amended by Act 46 of The aim of the code is further transformation in the commercial property sector in general companies but with a particular focus on property related companies by the implementation of new targets for BBBEE aimed at addressing inequalities and constitute a framework which establishes the principles upon which BBBEE will be implemented in the property sector. The new code states that: Despite significant progress since the establishment of a democratic government in 1994, South African society, including the property sector, remains characterised by racially based income and social services inequalities. This is not only unjust but inhibits South Africa s ability to achieve its full economic potential; The property sector believes that a positive and proactive response through the implementation of the principles enshrined in the draft aligned Property sector code would address inequalities in the sector, unlock the sector s potential, and enhance growth; Amongst a number of aims, the code seeks an increase in ownership of black people in the sector and has set a 27% black ownership target for property owning companies with at least 10% to be held by black women; however provisions regarding exempted micro enterprises have remained intact. The code has in addition set new targets for voting rights and employment equity across junior, middle and senior management across companies operating in the property sector i.e. estate agencies, property brokers and valuation companies. A new measurement indicator called the Economic Development has come into play, with an aim to boost the development of property in areas which are under-resourced and generally marginalised with a target for established companies to introduce financial support for companies which are at least 51% black-owned. These provisions are bolstered by new targets in Enterprise and Supplier Development governing the Total Measured Procurement Spend on all supplier relationships in the property sector in order to increase the level of supply in the industry from high scoring BBBEE businesses. In addition, the code establishes the intention of a programme, in conjunction with SETA, the Estate Agency Affairs Board ( the EAAB ) and the South African Council of Property Valuers Profession ( the SACPVP ) as well as any other regulatory bodies, academic institutions and government department involved in the property sector for a significant increase in the level of investment and quality of skills development in the sector with a focus on competency, continuous professional development and training within the property sector. There will also be a new focus on the education of younger persons in the possibilities of choosing property as a career path.

5 Minister Davies said even though the main focus of the Amended Property Sector Code is not on land reformation in South Africa, it should contribute towards reversing the legacy of the Native Land Act, 27 of 1913, and subsequent discriminatory policy and legislation which denied black people access to productive land and property. By Byron White ESI Attorneys Government Gazette No 40910: South African News Government Agency: Property 24: Amended Property Sector Code now legally binding : Engineering News: Amended Property Sector Code gazetted: 4 THIS NEWSLETTER IS COMPILED IN-HOUSE BY BYRON WHITE OF ESI ATTORNEYS. Please contact ESI Attorneys at or Byron White at byron@esilaw.co.za should you have any further queries and/or would like to make suggestions for future property related articles!