In a situation like this, the tenants are clearly in breach of their obligations in terms of the lease. They have not remedied their breach. And therefore, the landlord is entitled to cancel the lease and claim damages from the tenants for any lost income and for unpaid rental. In addition, the landlord can bring an application for eviction.
When dealing with tenants like these, it is important to remember that they may be playing for time. Empty promises are often an indication of a trend, rather than an exception. If a tenant is in default and has been making empty promises, chances are that they will continue to do so. It is therefore often best to get the legal processes started as soon as possible. Letters of demand should be issued, and thereafter summons. And an eviction application should also be launched simultaneously.
At common law, the landlord is under an obligation to maintain the property in a proper condition. This is a residual term imported into leases by the common law, according to Bradfield & Lehmann in Principles of the Law of Sale & Lease
But since the aforesaid duty is a residual term, it can be changed by agreement between the parties. It should be borne in mind, as was said in Pete’s Warehousing and Sales CC v Bowsink Investments CC 200 (3) SA 833 (E), that:
“ A clause which seeks to limit, or might be seen as seeking to limit, residual implied or common-law obligations, should be restrictively interpreted. Shapiro v Yutar 1930 CPD 92. Part of the headnote in Sarkin v Koren 1949 (3) SA 545 (C) reads as follows:
‘Since the purpose of a covenant by a tenant to repair the leased premises is to relieve the lessor of his common-law duty (or part of it), the covenant should be strictly construed, and the onus is on the landlord to satisfy the Court that the terms of the covenant relieve him of his common-law obligation.’”
On the other hand, it is a residual term of leases that the tenant to use the property only for the purpose for which it was let, and with the same amount of care as the proverbial “reasonable man”, or bonus paterfamilias. The tenant may not, according to Du Bois et al in Wille’s Principles of South African Law at 917, “not destroy, abandon, neglect, misuse, alter or appropriate the property, for on the termination of the lease it is his duty to restore the property to the lessor in the same condition in which it was delivered to him, reasonable wear and tear excepted” (footnotes omitted). Wear and tear is therefore also relevant to the duties of the landlord and tenant in respect of maintenance. In short, wear and tear is damage which occurs through ordinary day-to-day use.
The prevailing trend in leases commonly used today is that the common law position is altered to place the responsibility for some of the maintenance on the tenant. Often, the duty to maintain the interior is put on the tenant, and the duty to maintain the structure and the exterior of the property is then placed on the landlord.
In the absence of a clause which places the duty to maintain a portion of the property on the tenant, the landlord will be responsible for all maintenance. And if the cause if the damp is some portion of the property which, in terms of the lease is the responsibility of the landlord, then the landlord will be responsible for the repairs required to prevent the damp from continuing.
The cost of restoring the garden is for the tenant’s account, and may be deducted from the tenant’s deposit at the expiry of the lease, in accordance with the Rental Housing Act 50 of 1999. But the pot plants likely never, in absence of a specific clause in the lease, became the property of the landlord. The tenant may remove them without having to compensate the landlord, and the landlord may not prevent the tenant from doing so.