The Rental Maintenance Test – who is responsible?

For years, property practitioners and landlords have pulled their hair out over maintenance queries from tenants about who is responsible for repairs or maintenance. The good news is that this process does not have to be confusing and stressful. Here are the rules of thumb on rental repairs and maintenance queries to avoid disputes between tenants, landlords and property practitioners:

Always, check your lease agreement!

Firstly, your lease agreement will stipulate the maintenance obligations of each party to the lease agreement. Clause 17 of the TPN Residential Lease Agreement sets out the maintenance expectations of the property clearly and effectively for the tenant and the landlord to understand exactly who is responsible to maintain which portion of the property. This clause is guided by the Unfair Practice Regulations and the Rental Housing Act.

The Rental Maintenance Test explained

As a general rule when it comes to repairs, a test must be applied to the situation in order to determine who is liable for repairs to any damaged fittings, fixtures or appliances in the property. In the event that there is any damage to any part of the property or its fixtures, appliances or fittings, one must determine the following:

Should the fixture, appliance or fitting be damaged due to fair wear and tear, then the owner is responsible to repair such damage and the owner is liable for the costs incurred to repair such damages, including a call-out fee.

In terms of the TPN Residential Lease Agreement, fair wear and tear is defined as any decline which results from ordinary use and exposure over time, including breakage or malfunction due to age or deteriorated condition but not where such decline results from negligence, carelessness, accidents or abuse by the tenant or the tenant’s visitors.

Therefore, any fixture, appliance or fitting that requires repairs due to normal usage or the passing of time and there is no evidence of any intentional or negligent damage caused by the tenant, then the owner is responsible for such repairs. An electrician, plumber or a suitable contractor will be required to confirm whether the damage caused is due to fair wear and tear or not. 

If there is any evidence of intentional or negligent damage by the tenant, then the repairs and the costs incurred, including a call-out fee, are for the tenant’s responsibilityThis is regulated in terms of Regulation 7 of the Rental Housing Act Unfair Practice Regulations.

Who pays the contractor’s fee?

In the event that a contractor is called out, the owner is obliged to pay the contractor’s fees and then will recover the funds from the tenant. Should a tenant refuse to pay for these costs, the landlord can elect to either demand the payment of the costs within 20 business days and proceed to cancel the lease agreement immediately if the tenant fails to settle the outstanding amount within the allotted time period. Alternatively, should the landlord not wish to cancel the lease agreement, the deposit may be appropriated towards the maintenance costs upon termination of the lease agreement.

Often tenants request landlords to effect repairs and when the contractor arrives, the item is not damaged or no longer showing signs of damage for any reason whatsoever – the tenant is responsible for the call-out fee in this instance. The same principle will apply if the owner has requested the contractor to attend to the property and there is no damage to any fixture, appliance or fitting, then the owner is responsible for the call-out fee.

Download the TPN LeasePack for complete clarity

It is important to ensure that your lease agreement clearly sets out the obligations of your tenant when it comes to maintenance of the property. The TPN Residential Lease Agreement efficiently and lawfully sets these obligations out clearly in clause 17 – click here to purchase your LeasePack today!

By Rowan Terry, Legal Counsel at TPN Credit Bureau

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